1. 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

2. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Why Investigate? Duty to Do So Faraghar / Ellerth Kolstad v. ADA Employee Morale 2

3. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Plaintiff’s Mantra An Incompetent Investigator… Did an Ineffective Investigation Of Course, Reached the Wrong Conclusion What Else Would You Expect? 3

4. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Credible and Defensible 4

5. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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. 5

6. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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 6

7. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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? 7

8. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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 8

9. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Investigative Plan Review information and verify – Compare information – Identify gaps Documentation – Restrict dissemination 9

10. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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? 10

11. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Investigative Approaches “Quiet” (covert). “Visible” (overt). Transition from quiet to visible inquiries. Public relations. 11

12. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Tools Available in an Investigation The Client The Law Firm Public Information – commercial databases – private and proprietary databases – public records – the Internet 12

13. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Tools Available in an Investigation People as sources Interviews of witnesses Surveillance Forensics Public relations 13

14. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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 14

15. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Surveillance During the initial phase of the investigation Covert Dangers inherent in this technique Costs Client Expectations 15

16. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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 16

17. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Forensics Forensic Accounting Fraud Auditing Stings Polygraphs Examinations of Trash 17

18. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Professional Licenses Retain only licensed investigators – performing investigations without a license is a crime in some states 18

19. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Competence Corroboration Common Sense 3 Cs of Investigative Management

20. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Myriad of Potential Privacy Issues 20

21. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Searches Desks, Files, Lockers Cars Mail Strip Searches Testing Off-the-Job Conduct Undercover Investigators 21

22. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Electronic Privacy Issues Quon v. City of Ontario (Awaiting S.Ct. Decision) E-Mail / Internet Issues Eavesdropping Recording Phone Calls Electronic Monitoring Taping 22

23. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Oh, the Places You Will Go… Causes of Action Involving Investigations 23

24. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Causes of Action Involving Investigations Invasion of Privacy Constructive Discharge Defamation False Imprisonment Intentional Infliction of Emotional Distress Loss of Consortium And More… 24

25. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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) 25

26. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz 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 (7 th Cir. 2010) 26

27. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz Recent Ethics Cases Relating to Investigations In re Whirlpool Corp. (7 th Cir. 2010) Speeny et al v. Rutgers, The State University et al (3 rd Cir. 2010) Steingart v. Loving Care Agency, Inc., (S.Ct. NJ 2010) 27

28. WORKPLACE INVESTIGATIONS June15, 2010 PRESENTED BY: Michael J. Soltis Christina Feeny Frank Rudewicz ANY QUESTIONS? THANK YOU FOR YOUR ATTENTION! 28