Conducting Internal Investigations: Gathering Evidence and Protecting Your Company

Transcription

1 Conducting Internal Investigations: Gathering Evidence and Protecting Your Company World Headquarters the gregor building 716 West Ave Austin, TX USA

2 TABLE OF CONTENTS INTRODUCTION About This Course... 1 Kenneth Kemp... 3 Continuing Professional Education Credit... 4 I. PREPARING FOR AN INVESTIGATION When Is an Investigation Necessary?... 5 Employer s Duty to Investigate... 6 Statutory Disclosure Requirements... 8 Monitoring and Public Reporting Statutes... 8 Sarbanes-Oxley Act False Statement Statutes Civil Law Standard of Care/Duty to Company and Shareholders Accountants and Auditors Duties to Investigate External Auditors PCAOB Auditing Standard No Planning the Investigation Selecting the Investigation Team Investigative Strategy: Fraud Examination Methodology Review Questions II. COLLECTING DOCUMENTARY EVIDENCE Introduction Laws Governing Public Record Information Freedom of Information Act Fair Credit Reporting Act Gramm-Leach-Bliley Act Telephone Records and Privacy Protection Act of Right to Financial Privacy Act Driver s Privacy Protection Act Health Insurance Portability and Accountability Act Sources of Information Public Sources of Information City Government Records County Government Records State Government Records Federal Government Records Using Databases to Find Information Locating People Using Online Records Obtaining Financial Information and Locating Assets Finding Legal Records Conducting Background Checks Public Record Database Vendors Investigating with the Internet Pitfalls of the Internet i

3 II. COLLECTING DOCUMENTARY EVIDENCE (CONT.) Search Engines A Guide to Successful Searching Directories Meta-search Engines Useful Websites Review Questions III. WORKPLACE SEARCHES Introduction Constitutional Privacy Rights: The Fourth Amendment Public Employers Versus Private Employers Employee Privacy Rights Under the Fourth Amendment State Constitutions Effect of a Violation of an Employee s Constitutional Rights The Exclusionary Rule Civil Liability for Damages (42 U.S.C. 1983) Common Law Invasion of Privacy: Intrusion Upon Seclusion Reducing Employees Expectation of Privacy Balancing the Need to Search or Conduct Surveillance and the Employee s Privacy Rights Other Tort Liabilities in Connection with Searches and Surveillance Other Prohibitions Regarding Searches Searching an Employee s Mail Federal and State Nondiscrimination Statutes Monitoring Employee Phone Calls Pen Registers Monitoring Employees Monitoring Employees Internet Activity Video Surveillance of Employees Searching Employees Trash Special Privacy Rights Under Collective Bargaining Agreements State Statutes Sample Workplace Policy for Workplace Searches Obtaining Evidence by Subpoena Review Questions IV. ANALYZING AND ORGANIZING EVIDENCE Forensic Examination of Documents Sources for Expert Document Examinations Types of Forensic Document Examinations Handling Documents as Physical Evidence Recognizing Phony Documents Photocopies Organizing Documentary Evidence Chronologies To-Do Lists Using Computer Software to Organize Documents and Other Data ii

4 IV. ANALYZING AND ORGANIZING EVIDENCE (CONT.) Digital Evidence Understanding Digital Evidence Hardware Considerations When Seizing Digital Evidence Defining the Parameters of the Expert s Search Reviewing the Evidence Review Questions V. INTERVIEWING WITNESSES Interview Mechanics Choosing a Venue for the Interview Establishing Proxemic Control Over the Interview Taking Notes Do Not Interview More Than One Person Do Not Promise Confidentiality Handle Negotiation Attempts Do Not Discuss the Source of Allegations Common Problems Arising During the Interview Types of Questions Introductory Questions Informational Questions Closing Questions Assessment Questions Admission-Seeking Questions Review Questions VI. LEGAL CONSIDERATIONS IN INTERVIEWS Employees Duty to Cooperate Employees Rights During the Investigation Employees Constitutional Rights Employees Contractual Rights Employees Statutory Rights Common Law Employee Rights and Protections Presence of Corporate Attorney During Witness Interviews Preserving the Confidentiality of the Investigation The Attorney-Client Privilege Attorney Work Product Doctrine The Self-Evaluation Privilege Avoiding Liability for Obstruction of Justice and Witness Tampering Witness Tampering Obstruction of Justice Spoliation of Evidence Perjury and Subornation of Perjury Misprision of a Felony Recording the Results of an Interview Protect the Company s Interests in Confidentiality iii

5 VI. LEGAL CONSIDERATIONS IN INTERVIEWS (CONT.) Factual Work Product Versus Opinion Work Product Identify the Record as Work Product Identify the Record as an Attorney-Client Communication Identify the Self-Evaluation Purpose of the Interview Identify and Treat the Record as Confidential Review Questions VII. WRITING REPORTS Introduction Characteristics of a Good Report Accuracy Clarity Impartiality and Relevance Timeliness Legal Considerations for Written Reports Libel Privacy Privileges Disclosing the Report to Government Personnel or Other Third Parties Review Questions VIII. DISCHARGING EMPLOYEES Introduction The Public Policy Exception Breach of Contract Types of Contracts Statutory Violations Common Law Causes of Action Defamation Intentional Infliction of Emotional Distress Public Disclosure of Private Facts False Imprisonment Whistleblower Statutes Other Considerations Prosecuting Employees Why Prosecute an Offending Employee? Recovery of Losses in Criminal Cases Aiding the Company s Civil Remedies and Litigation Malicious Prosecution Review Questions CONCLUSION PRACTICAL PROBLEMS Practical Problem Practical Problem iv

6 PRACTICAL PROBLEMS (CONT.) Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem SOLUTIONS TO REVIEW QUESTIONS Preparing for an Investigation Collecting Documentary Evidence Workplace Searches Analyzing Documentary Evidence Interviewing Witnesses Legal Considerations in Interviews Writing Reports Discharging Employees SOLUTIONS TO PRACTICAL PROBLEMS Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem Practical Problem FINAL EXAMINATION... E-1 v