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Conducting Internal Corporate Investigations Toolkit
Practical Law Toolkit w-021-9637 (Approx. 18 pages)
Conducting Internal Corporate Investigations Toolkit
by Practical Law Securities Litigation & White Collar Crime
| Maintained • USA (National/Federal) |
A collection of resources to help in-house and outside counsel and companies prepare for and conduct effective internal corporate investigations.
The US's complex and aggressive regulatory environment combined with its active private plaintiffs' bar requires responsible companies to know how to properly investigate potential misconduct. This Toolkit contains resources designed to help counsel prepare for, conduct, and conclude an effective internal corporate investigation. It also includes resources to help counsel handle specific types of internal investigations, for example, internal investigations concerning the Foreign Corrupt Practices Act of 1977 (FCPA) or those prompted by a special committee or a whistleblower complaint.
Counsel conducting an internal investigation should gather enough facts to allow them to provide legal advice to enable a company to assess its potential criminal, civil, or regulatory exposure, take any necessary remedial action, impose discipline on any wrongdoers, and decide whether to disclose any misconduct to the government, a regulator, the company's shareholders, or the public.
Companies must be prepared to consider a wide variety of strategic issues related to an internal investigation, such as:
- When to conduct an internal investigation.
- Who should conduct the investigation (for example, outside counsel or in-house counsel).
- The proper scope of the investigation.
- Whether to enter into a joint defense agreement (JDA) (also called a common interest or common purpose agreement) with any of its current or former employees.
- Collecting information and documents (including electronically stored information (ESI)) during an investigation.
- Maintaining the attorney-client privilege and the work product protection.
- Delivering an Upjohn warning to a witness.
- Conducting witness interviews to elicit useful information.
- Memorializing witness interviews.
- Documenting the investigation.
- Special considerations, for example, whether to:
- retain forensic accountants or economists; or
- engage pool counsel to offer their representation to certain employees.