WORKPLACE INVESTIGATIONS for June 15, 2010 Presented by: MICHAEL J WORKPLACE INVESTIGATIONS for June 15, 2010 Presented by: MICHAEL J. SOLTIS CHRISTINA FEENY AND FRANK RUDEWICZ soltism@jacksonlewis.com | jacksonlewis.com Christina.Feeny@Thomsonreuters.com | Thomsonreuters.com Frudewitcz@dbo.com |bdoconsulting.com

Why Investigate? Duty to Do So Faraghar / Ellerth Kolstad v. ADA Employee Morale

Plaintiff’s Mantra An Incompetent Investigator… Did an Ineffective Investigation Of Course, Reached the Wrong Conclusion What Else Would You Expect?

Credible and Defensible

The Investigative Plan Identify goals and objectives. Prioritize the steps to be taken. Set timetables. Covert versus overt. Choose the appropriate strategies and techniques Digital Forensics, Field Interviews, Database and Internet Research, Surveillance, Sting, Etc.

Investigative Goals & Objectives Developing leads, facts, intelligence and general information: about the issues in dispute going to the credibility of witnesses, potential witnesses and evidence obtaining critical evidence

Investigative Plan Elements of the violation What are elements needed to establish the violation? Legal/criminal Policy Violations Procedural violations Administrative violations Identify the targets of the investigation Suspect known? More than one suspect?

Investigative Plan Assign the appropriate investigator Any improper relationship? Any known bias? Should outside personnel be involved? Conduct interviews/collect facts Ensure confidentiality of process Maintain integrity of evidence and investigation

Investigative Plan Review information and verify Documentation Compare information Identify gaps Documentation Restrict dissemination

Investigative Plan Goals & Objectives Verify the occurrence Rumors? More to the story? Any physical evidence? Is this possible? Identify the alleged violation What exactly occurred? Confirm the allegation or is it another offense?

Investigative Approaches “Quiet” (covert). “Visible” (overt). Transition from quiet to visible inquiries. Public relations.

Tools Available in an Investigation The Client The Law Firm Public Information commercial databases private and proprietary databases public records the Internet

Tools Available in an Investigation People as sources Interviews of witnesses Surveillance Forensics Public relations

Interviews of Witnesses Who may be interviewed? Practical considerations Different approaches for interviews Tape recording interviews Eavesdropping and bugging Demands for payment and other requests Hiring former employees of an adversary

Surveillance During the initial phase of the investigation Covert Dangers inherent in this technique Costs Client Expectations

Digital Forensics Desktop and Laptop Computers Servers Mobile Telephones Blackberry Devices Other Digital and Digital Media Devices Key Stroke Monitors Developing Deleted Material Establishing Downloads and Theft

Forensics Forensic Accounting Fraud Auditing Stings Polygraphs Examinations of Trash

Professional Licenses Retain only licensed investigators – performing investigations without a license is a crime in some states

3 Cs of Investigative Management Competence Corroboration Common Sense

Myriad of Potential Privacy Issues

Searches Desks, Files, Lockers Cars Mail Strip Searches Testing Off-the-Job Conduct Undercover Investigators

Electronic Privacy Issues Quon v. City of Ontario (Awaiting S.Ct. Decision) E-Mail / Internet Issues Eavesdropping Recording Phone Calls Electronic Monitoring Taping

Oh, the Places You Will Go… Causes of Action Involving Investigations

Causes of Action Involving Investigations Invasion of Privacy Constructive Discharge Defamation False Imprisonment Intentional Infliction of Emotional Distress Loss of Consortium And More…

Key Retaliation Cases Relating to Investigations Burlington Northern & Santa Fe Railway Co. v. White (S.Ct 2004) Crawford v. Metropolitan Gov’t of Nashville and Davidson County, TN (S.Ct 2009) Fincher v. Depository Trust and Clearing Corporation, (2d Cir. 2010)

Recent Ethics Cases Relating to Investigations Mohawk Industries v. Carpenter (S.Ct. 2009) Costco Wholesale Corp. v. The Superior Court of LA County (S.Ct. CA 2009) Sandra T.E. v. South Berwyn School District 100 and Sidley Austin LLP (7th Cir. 2010)

Recent Ethics Cases Relating to Investigations In re Whirlpool Corp. (7th Cir. 2010) Speeny et al v. Rutgers, The State University et al (3rd Cir. 2010) Steingart v. Loving Care Agency, Inc. , (S.Ct. NJ 2010)

ANY QUESTIONS? THANK YOU FOR YOUR ATTENTION!