The fundamental goal of any internal investigation or workplace investigation is simple: to confirm or refute suspected wrongdoing within the company. Additionally, internal investigations can play an important role in swaying third parties when necessary, such as judges, jurors, regulators, or the press.
To accomplish either of these goals, however, you need careful planning, a defensible approach to fact-finding, and, increasingly, the use of technology, which can reduce the cost of internal investigations and help bring them to a speedy resolution.
An internal investigation is a formal inquiry conducted by an organization when there are allegations of wrongdoing to determine whether laws, regulations and internal policies have been violated. Additionally, an internal investigation can also occur in the context of a due diligence process before a merger or acquisition.
Internal investigations often start after an internal or external source makes the company aware of potential misconduct. Common triggers of internal investigations are law enforcement or regulatory requests for information, subpoenas, media reports, audit reports, or whistleblower claims.
The ultimate goal of an internal or workplace investigation is to either confirm the wrongdoing to quickly amend it or to dispel the suspicion. Therefore, an optimal internal investigation process should be quick, fair, and thorough in accomplishing any of those goals.
Internal investigations can cover a wide range of topics, from employment disputes to the theft of company intellectual property to regulatory compliance, or the lack thereof.
For companies large and small, the need to conduct internal investigations or workplace investigations can be significant.
In 2018, the number of internal ethics and compliance reports reached a record high, with a median of 1.4 reports per 100 employees. This means that the average 500-person company now faces around seven compliance events per year, each of which requires an investigation.
Luckily for investigators, however, there is often a single-prong method to wrongdoing. That is, employees tend to use similar avenues to facilitate bad behavior. So, with the right tools and processes, companies can handle a wide range of workplace investigations with ease, predictability, and defensibility.
These are the most common forms of potential wrongdoing in the workplace, which trigger internal investigations:
Although internal investigations can span a wide range of potential issues, from employment disputes leading to employee investigations to potential theft of company IP, to regulatory compliance, the internal investigation procedure is quite similar to the eDiscovery process, and the same elements and tools can help accelerate the workflow.
The key steps you need to take to expedite and increase the rigor of internal investigations are thorough planning, selection of person or team responsible for the internal investigation, data preservation, collection, and review, interviews, and generation of investigation report with the investigation findings, conclusions, and remedial steps.
Internal and employee investigations aren’t the place to “shoot from the hip and tidy up later.”
Applying repeatability and defensibility to your process is key. Before implementing a new internal investigations process, you need to study, analyze, and establish the right steps and defensible workflows, and that takes proactive planning. Thinking ahead will not only help your investigation run more smoothly, but it will help demonstrate your commitment to a rigorous, objective, and fair investigation to regulators, judges, and juries, when necessary.
At the beginning of an investigation, you should seek to establish:
Thorough planning helps create a repeatable, defensible approaches that reduce cost and mitigate risk. This includes having the right technology to automate those parts of the process that don’t require human intervention to save time and costs.
Now that so much employee misconduct occurs online, investigators need to fight fire with fire. In-sourcing data preservation, collection, and document review allows companies to allocate resources effectively, reduce external spend, and take control of their compliance procedures—all while saving hundreds of hours in the process.
Selecting the proper team to conduct the internal investigation is critical. It requires balancing considerations of speed, cost, expertise, and impartiality.
Prior experience is also necessary in order to navigate the multiple challenges and risks associated with internal investigations, such as compromised privilege or conflicts of interest. In certain types of investigations where impartiality is difficult, you should bring in a completely independent counsel to conduct it.
Typically, internal investigations and employee investigations are conducted by one of three groups. Human resources teams; internal compliance investigations or security teams; in-house counsel, or third-party experts, such as law firms, professional investigators, and security consultants.
Each choice has its unique benefit and presents different challenges.
Internal HR teams: Having your internal human resources team handle employee or workplace investigations can be both efficient and cost-effective. Because HR teams are already familiar with company personnel, policies, and investigation procedures, they can get started on an investigation quickly, and shifting work from third-party experts or vendors can result in significant cost savings. They’re also closer to employees, which makes interviews and research easier. However, the HR team also has its day-to-day workload, which can make the additional work of an investigation burdensome.
Internal compliance and security teams: Companies with dedicated compliance and security teams can often handle many of their investigatory needs effectively, affordably, and entirely in-house. They posses an understanding of corporate policies and procedures, plus the specialized skills and independence that make for an effective internal investigation. Armed with the right technology, internal compliance and security professionals can move quickly to respond to incidents and identify the key facts that decision-makers need.
In-house counsel: When corporate legal teams conduct the investigation, it’s important that they disclose to the parties involved in the investigation the purpose of the investigation and the attorney-employer relationship. The employees under investigation need to understand that in-house counsel is representing the company, not individual employees during workplace investigations. Since they’re familiar with the eDiscovery process, most in-house teams can run internal investigations effectively.
Third-party experts: Third-party experts, such as law firms, security consultants, and professional investigators, can guarantee impartiality when conducting internal investigations and free internal stakeholders from the task. However, utilizing outside experts can slow the launch of an investigation and lead to high expenses.
Thus, some organizations may bring in outside experts only for particularly risky or complex investigations. Others will conduct the initial stages of the investigation themselves, inviting outside experts in later in the process. In-house professionals, for example, can collect and upload data, even conducting initial culling and review, before inviting in third parties. Doing so in a closed-loop, the cloud-based system has the added benefit of allowing companies to keep their information under their direct control while empowering their outside experts to operate more quickly and efficiently.
A speedy response to potential misconduct is essential to neutralizing potential risk—and is often required by law.
In the case of alleged sexual harassment, for example, the federal courts have required companies to engage in prompt remedial action in order to shield themselves from liability, and the failure to engage in prompt investigations has led to significant awards against employers.
Therefore, once an internal investigation is triggered, you need to act fast to preserve, collect, and review all data relevant to the investigation.
The type of data to analyze will largely depend on the company’s technological maturity and the alleged wrongdoing, but it usually includes a mix of ESI (emails, electronically-stored documents, chat messages), physical documents, and, sometimes, files stored on personal devices of company personnel (text messages, personal emails, etc.)
Technology can play a crucial role in speeding up your internal investigations’ process. Once the appropriate sources of information are identified, such as employee email accounts, company communications, and relevant files, you can quickly load them into a document review platform—or leverage any existing integration with data sources for instant collection—to allow investigators to begin establishing the facts at play.
Read on to learn more about how internal investigations software can assist with this process.
At the end of your investigation, you should have a final report that summarizes all the steps you took, the investigation’s findings, and the remedial steps that were taken based on the findings.
If needed, this document will help you prove that took immediate action when faced with the alleged wrongdoing, that you followed all necessary steps to confirm or refute such wrongdoing, and that you did what was necessary to remedy the situation.
At this point, it’s crucial to protect the company’s attorney-client privilege and work product over the investigative findings.
As we just learned, a streamlined process is crucial to conduct a successful internal investigation, but there are other key factors that can make or break your internal or employee investigations.
Here’s a complete checklist with all the must-have elements of a proper internal investigation:
Be Thorough: To be trusted as reliable by jurors and regulators, you need to be rigorous on fact-finding. Taking shortcuts, omitting information, or not following best practices can raise suspicions of evasiveness or coverups, undermining the whole purpose of the investigation. Investigators must avoid prejudgement and be willing to follow the evidence where it leads them, even if they end with large volumes of evidence to review.
Keep it Confidential: Internal and employee investigations can involve incredibly sensitive information; information about the company itself as well as those involved in the investigation. In order to protect against the loss of potentially damaging information, investigators need to make sure that their data is secured throughout the investigation process. In order to protect the privacy interests of those involved, they should also seek out the least intrusive method of investigating.
Minimize Intrusiveness: To protect privacy, encourage confidentiality, and conduct a speedy investigation, workplace investigation teams should seek out the least intrusive way to obtain the facts needed. Typically, this means starting with company documents and files to establish the facts before moving on to potentially more invasive investigatory methods. Internal investigations software can reduce intrusiveness by making it quick and easy to collect, cull and review large volumes of information without involving custodians.
Be Quick: Instead of collecting and searching through documents manually or waiting for third-party vendors to collect and process files, investigation teams can harness modern internal investigations software to reduce the time from project initiation to document review to a matter of minutes.
Leverage Internal Investigations Software: You can easily follow all the above-mentioned best practices with the help of internal investigations software. The right tool will allow you to save time and money in the process while keeping your internal investigations process completely defensible.
Internal investigations software helps legal and HR teams quickly upload, process, and review data that could be relevant to their investigation. This process is similar to document review and production in litigation, leading many organizations to embrace eDiscovery software for their own investigations.
When an investigation is triggered, investigators can quickly collect data from their data sources or simply drag and drop it into their review platform. From there, data ingestion is automated. Documents undergo a series of processing steps, including OCR’ing, text extraction, deduplication, virus scanning, and metadata preservation, to prepare the data for review.
Once loaded, review can begin quickly. Bulk culling and auto-tagging reduce the need for eyes-on review. The more sophisticated the review platform’s search capabilities are, the better, allowing investigators to create intelligent, customized searches to quickly identify the “troubled children.”
Here’s how investigations software can help speed up your internal investigations:
The right workplace investigation software can make your life easier even before the investigation actually begins. As soon as there’s reasonable anticipation that an investigation might occur, you can use Logikcull Hold to issue a legal hold notice to all relevant custodians and automatically preserve in place data from sources like Google Vault. Reminders and hold acknowledgement tracking is 100% automatic, and when the matter moves into a full-blown investigation, you can start ingesting and reviewing all relevant data in the same place. This allows you to keep a full picture of your investigation process.
With the right technology in place, you can collect all relevant information from any custodian cloud-to-cloud and in just a few clicks. When your internal investigations software is integrated with your main data sources, such as Microsoft 365, Google Workspace, Box, or Slack, you have a direct line with your company’s data, so you can move from collection to review in just a few minutes.
For any data that’s not stored in any traditional sources, you also need a platform that allows you to drag and drop any file type and start reviewing quickly.
When your information is loaded into a review platform like Logikcull, it goes through thousands of automated processing steps, such as document deduplication, OCRing to make files searchable, metadata extraction to collect valuable information, virus scanning, embedded file extraction, and more. That information can then be used to quickly filter your documents for review.
Using metadata filters, you can hone in on the most relevant documents quickly. For example, you can use filters to narrow documents by file type, sender, recipient, date range, and more. If the subject of an investigation has been exfiltrating company information by emailing it to a personal account, for example, filters can help identify those actions in minutes.
Your software should also allow you to “cull”, or exclude, unimportant information. Duplicate documents can be instantly removed, while irrelevant files, spam, and the like can be set aside to avoid unnecessary review.
Add smart searching into the mix, and you can radically reduce the time needed to review documents. Internal investigation tools like Logikcull allow you to engineer powerful searches, whether you are looking for simple keywords or complex relationships between terms.
And, since intuitive design is one of the hallmarks of this internal investigations technology, you don’t need a degree in information sciences to construct powerful searches—the software makes complexity incredibly simple. In many cases, effective search and culling can eliminate the need to review up to 97 percent of a subject’s documents. This can dramatically bring down review time and costs.
Once your data culling and review is complete, you need to produce it in a format that’s appropriate for the recipients. Internal investigations software allows you to export your information in PDF or any other common production format, as well as share the link of your review project with anyone for instant collaboration.
Finally, cloud-based internal investigations software allows you to keep control over your most sensitive data, even when working with outside experts. Rather than sending data to an outside vendor, you can upload, process, and get your data ready for review in a secure, encrypted environment. You can then invite outside experts, such as law firms or security consultants, to aid in review, without documents ever being reproduced or taken out of the company’s control.
Not all internal investigations software are created equal. The best tool for you will depend on your unique needs and the structure of your own internal investigations process.
However, there are some characteristics that you should always look for in internal investigations software to make sure your process is as streamlined and painless as possible: