1. WORKPLACE INVESTIGATIONS for June 15, 2010 Presented by: MICHAEL J
WORKPLACE INVESTIGATIONS for June 15, Presented by: MICHAEL J. SOLTIS CHRISTINA FEENY AND FRANK RUDEWICZ | jacksonlewis.com | Thomsonreuters.com |bdoconsulting.com

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

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

4. Credible and Defensible

5. 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.

6. 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

7. 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?

8. 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

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

10. 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?

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

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

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

14. 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

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

16. 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

17. Forensics Forensic Accounting Fraud Auditing Stings Polygraphs
Examinations of Trash

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

19. 3 Cs of Investigative Management
Competence
Corroboration
Common Sense

20. Myriad of Potential Privacy Issues

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

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

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

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

25. 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)

26. 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)

27. 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)

28. ANY QUESTIONS? THANK YOU FOR YOUR ATTENTION!