Internal investigations - 7 tips on interviewing witnesses during the lockdown

As I noted in my recent Passle post on collating documents during the pandemic (link here), conducting internal investigations during the current crisis presents a number of significant barriers. 

Another example of these hurdles is the need to interview individuals who might have information or documents relevant to an investigation. Clearly face-to-face interviews are difficult, if not impossible, at the moment. 

Although the recent exponential rise of video conferencing apps such as WebEx and Zoom enable interviews to take place in as close to ideal circumstances as possible at the moment, there are a number of points to be aware of.  Ultimately, the information obtained (and maybe even the interview content itself, if it is recorded) might be deployed, either voluntarily or under compulsion, in response to an inquiry or demand from a regulator or law enforcement agency.  It is therefore important to consider a number of issues very carefully.       

Here are 7 tips for running effective interviews during the outbreak.

1. Prepare prepare prepare – planning is crucial. Plan, re-plan and plan again. Adequate time must be spent preparing for each interview and, indeed, planning the overall strategic approach.  For example, it may be the case that starting interviews with the most junior employee and working up to the most senior is appropriate so that, when one speaks to the more senior people involved, one has a fuller picture. Build in time for repeat interviews given that later interviews can mean an individual who has already been interviewed should be interviewed again.  
2. Prepare documents in advance including how these are to be shared. Consider whether you want to provide documents in advance (in which case ensure any confidentiality is preserved and use a system where it is easy to direct the individual to particular documents or pages) or whether you wish to share documents during the interview itself.  If you decide to go the latter route, careful preparation is key including practising sharing documents over the relevant video-conferencing app. Whichever method is chosen, ensure that the dissemination of documents is permitted in the relevant jurisdictions and that relevant data protection regulations are complied with.  
3. Do a trial run. This will ensure that all participants can access the necessary hardware, know how to use the video conferencing app, and have sufficient bandwidth on their Internet connection. 
4. Have an alternative method of communication lined up. Even the best laid plans can fail at the last minute. Clearly the best method, apart from face-to-face “in person” interviews, is over live video, but have a back-up plan which may be audio-only.  It may be that you can reschedule a new time and date for the interview but that will not always be possible. 
5. Ensure the video interview is “locked”. Ensure that no unauthorised access to the call is possible. Depending upon the app used, use unique IDs for each participant together with passcodes. Potentially set up a “waiting room” to check who is joining your meeting and when. “Lock” the interview once it has started to prevent any further participants from joining.
6. Instruct the interviewee to find a private space for the interview. In this time of so many people working from home, many people have experienced an interruption to their video calls whether by pets, children or others. Make sure everyone on the call minimises the risk of distractions by finding as secure and private a spot in their home as possible. This is also important to preserve any legal privilege in the notes made of the interview. That privilege may be affected if others – such as spouses, children or flatmates - are in the same room or can otherwise hear the interview. At the beginning of the interview, interviewers should confirm that all participants are in a private location. Seek confirmation, at regular intervals throughout the interview, that no one else has entered the room. 
7. Making a recording – consider this very carefully in advance. It is easier now to record interviews – many video-conferencing apps have that functionality. However, consider the pros and cons carefully and in advance. First, a threshold question. Is making a recording legally permissible in both your jurisdiction and, where it is different, the jurisdiction of the interviewee? Secondly, is the recording likely to be legally privileged? If there is a material risk that it might not be – and, at least in English law, there is - it might be considered best to rely solely on a lawyer’s notes of the interview. Thirdly, best practice demands that the individual be told of the recording. Consider how that might affect the interviewee’s responses and behaviour.     

Running witness interviews during the pandemic is not easy. Provided, however, that all those concerned are competent with video conferencing apps and have applied their minds to logistics in advance of the interview, there is no reason why they cannot be effective.