Litigators are well aware of the pitfalls of a botched investigation that includes exclusion of evidence critical to the client’s case. In our experience, many of these adverse outcomes can be traced back to inadequate due diligence in selecting the investigator or poor communication between the litigator and the investigation team. Here are some key points to help you ensure your relationship with your investigator is effective and risks are minimized.
Assembling the Team
Before engaging an investigator, consider whether the person or team is right for the assignment.
Do they have the experience, expertise and resources required for this specific matter? If the scope of the case proves to be more extensive than originally understood, can the investigative team meet the expanded mandate?
It’s also important to determine whether the investigators can begin work during the required timeframe and commit to the assignment. Obtain a commitment regarding the specific team members assigned to the investigation and assurances regarding continuity of their participation through to its conclusion.
Many matters these days, especially large and complex ones, involve multiple jurisdictions. These matters could require investigators with different language skills or knowledge of local customs and laws. Make certain, in cases where work has to be conducted in other countries, that the investigative firm has either a local office in or nearby those locations or has a trusted network of professionals upon whom it can rely.
The relationship between the parties has to be one of mutual respect and trust. This means that your due diligence in retaining a forensic accountant or corporate investigator needs to go beyond your experience and expertise to an understanding of the way they conduct their work. They are representing the lawyer and law firm while on an assignment and should be selected with appropriate care and consideration.
It is important to confirm that the assignment will be conducted in conformity with applicable laws, rules and regulations. Skilled investigators should be capable of obtaining information, including sources that are obscure and difficult to find, using methods that are legal and ethical. They should know the applicable laws, such as any privacy regulations, and be able to converse knowledgably with you about what can and can’t be done in each relevant jurisdiction.
During that critical first communication, ask questions that will allow you to assess whether the investigators can perform the work accordingly.
Communication of Issues
Clear and thorough communication from the outset of an investigation is critical. Just as lawyers encourage clients to mention even the most unlikely piece of information in case it later proves important, so too should lawyers share with investigators as many details as necessary to enable them to perform the assignment effectively. In many instances, an investigator may not have the opportunity to conduct follow-up interviews with a source. Consequently, it is critical that all issues are covered in the initial interview. If the investigator has only been briefed on select issues, the opportunity to develop critical information may be lost.
It is also not uncommon for a litigator to say that something has already been addressed and doesn’t need to be included in the scope of the work. That could be true but it could also be that, when analyzed by a new set of eyes with a different set of skills, it reveals something valuable.
The same could apply to assessing how the investigator will review certain media. For example, when reviewing electronic communications and documents, a corporate investigator might suggest additional key words on a list of search terms. You might be concerned about cost or the potential volume of resulting hits, however the addition could prove to be well worth the investment, to the extent they reveal important evidence such as business relationships, assets, or other questionable behaviour that had not previously emerged. An experienced investigator can assist in the development of strategy to identify potential sources of relevant electronic data. Once collected and preserved, lower priority information can be set aside pending a decision as to whether detailed analysis is required.
Thorough and effective communication must also be maintained throughout the investigation, as new information becomes available and evidence is established.
Maintaining Chain of Custody
Failure to maintain proper chain of custody protocol could result in its credibility being challenged. In situations such as data located in a seized computer or other electronic devices belonging to an employee suspected of wrongdoing, it is critical to resist the temptation to open it up and start searching.
Forensic specialists may be able to recover deleted information from a computer hard drive, or identify relevant data copied to other devices. However, if the device is compromised (even the act of turning it on prior to the involvement of forensic specialists who know and follow strict protocols), the chain of custody can become an issue.
Privacy issues also need to be considered. Are you certain, for example, that the computer was company issued for work-related matters?
Although lawyers know full well the importance of maintaining an impeccable chain of custody, utilizing an experienced investigator’s chain of custody protocols that have been successfully upheld in court proceedings will ensure the credibility of evidence is not compromised.
Analyzing and Reporting the Facts
You should feel confident that your investigator can, if necessary, assist in preparing for discovery, interviews and court proceedings. A room full of documents can be overwhelming to manage, and the complexity of some financial data, such as a web of funds traced through various corporate entities, can be difficult to understand and explain clearly without the expertise of financial investigators.
The investigator’s ability to provide clear and concise information about their findings is an incredibly important attribute. Consider the investigators’ prior experience in providing expert testimony in court proceedings, arbitrations or other forums.
Having worked with the legal community for more than two decades, we have found that these best practices have proven to be extremely helpful in the investigation process and have ultimately contributed to many successful outcomes.
About the Authors
Deborah Gold and Jennie M. Chan are both managing directors with Kroll, an international intelligence and information management firm. Kroll.com