Conducting an Internal Investigation: Key Considerations for Companies Facing Legal Liability in Florida

For companies that are facing litigation (or the possibility of litigation), working with a Miami civil litigation attorney to conduct an internal investigation is a key first step toward making informed decisions. When targeted with allegations of contractual violations, infringement, discrimination, harassment, or other potential grounds for liability, it is imperative to have an accurate understanding of the facts at hand.

Once you have thoroughly assessed the allegations at issue, then you can shift your focus to building a strategic defense. But, until you know what—if anything—the plaintiff (or potential plaintiff) will be able to prove, you simply will not have any way of knowing your company’s level of risk.

7 Key Considerations for Conducting an Internal Investigation

Just as preparing for litigation requires an informed and strategic approach, conducting an internal investigation does as well. While it is important not to waste time that could be better spent elsewhere, it is equally important—if not more so—to ensure that the investigation is sufficiently comprehensive.

If an internal investigation fails to uncover relevant information, not only will this frustrate the purpose of the investigation, but it will also leave the company exposed. Basing decisions on incomplete information when you think you have complete information can be dangerous—and this is a mistake that corporate executives and in-house lawyers need to be extremely careful to avoid.

With this in mind, here are seven key considerations for conducting an internal investigation in anticipation of potential civil litigation:

1. The First Step is to Implement a Legal Hold

Any time a company faces the possibility of litigation, it should promptly implement an effective legal hold. This involves ensuring that all potentially relevant records (both hardcopy and electronic) are preserved. Not only is this essential for conducting an effective internal investigation, but in the event of litigation, it will help avoid potential issues related to evidence spoliation and substantiating the company’s defenses.

2. It Is Important to Carefully Select the Personnel Involved

When conducting an internal investigation, it is important to carefully select the personnel involved. All personnel involved in the investigation should be suitably qualified, and each individual should have a clear understanding of their specific role in the process.

It is also critical to ensure that no one involved in the investigation has a personal interest in its outcome. Among other things, this means that anyone who is implicated in the allegations should generally be excluded. Friends and relatives of individuals who may be implicated in the investigation should generally be excluded as well.

3. Relevant Records Should Be Identified, Cataloged, and Preserved

There are two major aspects to any internal investigation: (i) reviewing relevant records; and (ii) conducting witness interviews. After implementing a legal hold, all relevant records should be identified, cataloged, and preserved. This will enable a systematic review of these records and the easy retrieval of relevant records later in the litigation process, if necessary.

4. Privileged Records Should Be Noted As Such

Various records gathered during the investigative process may be subject to the attorney-client privilege. While these records need to be reviewed during the investigation, they generally are not subject to disclosure in litigation.

However, it is up to companies to avoid inadvertently disclosing privileged records—and, if even a single privileged record is disclosed, this can potentially waive the privilege in its entirety. As a result, it is critical to properly annotate privileged records so that they can be appropriately withheld or redacted during discovery.

5. Interviews Are Key and Should Be Custom-Tailored

Along with reviewing relevant records, conducting witness interviews is another major aspect of an internal investigation. For these interviews to be maximally effective, questions should be custom-tailored for each individual employee. Interviewers should be familiar with both what to say and what not to say during the interview process; as a result, it will make sense for companies’ legal counsel to conduct interviews in most cases.

6. The Purpose of the Investigation is to Make an Unbiased Assessment

At the investigative stage, the goal is not to focus solely on finding information that is favorable to the company. Rather, the goal is to examine all relevant information in order to make an unbiased assessment of the company’s risk. Conducting an unbiased risk assessment requires knowledge of all pertinent facts, and focusing only on favorable facts at this stage could give the company’s leadership team a skewed perception of the company’s potential liability exposure. This is a critical mistake that needs to be avoided.

7. The Investigation Itself Should Be Carefully Documented

In addition to gathering relevant documentation, another key focus of the investigative process should be on documenting the investigation itself. This is important for two key reasons: (i) it allows for an accurate assessment of the investigation’s comprehensiveness; and (ii) evidence of a good-faith investigation can serve as a mitigating defense in certain types of cases (i.e., those involving allegations of discrimination and harassment). Here too, the company’s efforts should be guided by its legal counsel, as an experienced Miami civil litigation attorney will be familiar with what is necessary to achieve both of these purposes.

While these are key considerations in conducting an internal investigation, they are far from the only ones. If you need to know more about the process of conducting an internal investigation in anticipation of potential civil litigation, you should consult with experienced defense counsel promptly.

Speak with an Experienced Miami Civil Litigation Attorney in Confidence

If you need more information about the steps involved in conducting an internal investigation, we invite you to get in touch. Our attorneys have extensive experience representing South Florida companies before, during, and after high-stakes civil litigation. To speak with an experienced Miami civil litigation attorney at Gonzalez Law Offices, P.A. in confidence, give us a call at 305-676-6677 or contact us online today.