Investigators should consider a record retention policy for investigations, which will be useful in case of litigation, defend the integrity of the investigation, avoid spoliation claims, and maintain efficient and ethical practices that reduce costs.
Although investigators understand that they must retain—and potentially turn over—all documents and electronic information gathered and relied upon during an investigation, many investigators struggle with the retention of documents generated, such as witness interview notes and summaries, and investigation report drafts.
The following are some relevant considerations the Association of Workplace Investigators (AWI) makes for investigators when preserving internal documents produced during employee complaint investigations in California.
1. Are the investigator’s internal documents and work product discoverable?
Even attorney investigators who investigate under the attorney-client privilege must be prepared to disclose their internal documents if the client waives the privilege and uses the investigation in subsequent litigation. However, as an investigator cannot predict which investigation will be the subject of later litigation and waiver, the investigator should treat all investigations as such.
Also, an investigator must be prepared to respond to subpoenas seeking to have a forensic expert search for relevant documents or data on the investigator’s computer system. The Federal Rules of Civil Procedure specifically require the production of “electronically stored information” and permit litigants to seek discovery of metadata.
Whether investigators will be compelled to provide their computer in discovery depends on the specific facts and the relevant rules of evidence and discovery. Investigators who can point to a retention policy and standard practice of storing only final versions of documents, free of metadata, will be in the best position to argue that reviewing their computer will not discover any additional relevant information.
2. Should investigators type or take handwritten interview notes?
One approach to capture witness statements is to take handwritten notes; investigators can keep their original notes or scan them and keep a digital copy in their files. At the time of litigation, the investigator can produce the notes, or the digital copy, in discovery.
Another approach is to take typewritten notes during the witness interviews.
In addition, some investigators take interview notes to later create a comprehensive and coherent summary of the witness statement. However, investigators who follow this practice must be prepared to answer why they did not retain the original notes and recognize the risk that a litigant may challenge the accuracy of the witness statement.
Once a document is generated on the computer, investigators must be aware of the chance that all versions of the document will be sought in discovery. Investigators must understand that a party to litigation might be able to recreate the preparation of a particular document through a forensic review of the investigator’s computer in an effort to undermine the investigation’s integrity by arguing that there are inconsistencies or omissions between drafts.
3. Witness statements must be retained.
Investigators who record or collect witness statements must retain those because all such changes are arguably relevant in subsequent litigation. This includes all versions of the statements, including any changes made by the investigator or the witness.
4. Internal versions of investigation reports warrant special consideration.
Most investigators draft investigation reports on the computer using a word processing program. The investigator’s changes and revisions to the report are made in the same document, and most investigators do not retain the different versions of their reports as they prepare them. These drafts of the investigator’s work in progress and those shared and exchanged with internal colleagues and staff for review are “internal” drafts.
Therefore, there is a risk in litigation that a party may seek a forensic review of an investigator’s computer to view early versions of an investigator’s report. A litigant’s document holds obligations only apply to documents relevant to the litigation; therefore, an investigator is not required to preserve internal drafts even when a litigation hold obligation is in place.
Investigators who wish to avoid scrutiny of the versions of a report should consider establishing a practice of not retaining internal drafts and removing the metadata from final investigation reports.
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California Labor Solutions (CLS) is one of the only HR firms that is licensed* to conduct workplace investigations in California. We have conducted hundreds of neutral, objective, and unbiased workplace investigations for employee complaints relating to allegations of discrimination, harassment, retaliation, and various types of employee misconduct with the utmost quality, detail, and efficiency.