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Why Investigate?

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

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Why Investigate?

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  1. WORKPLACEINVESTIGATIONSforJune 15, 2010Presented by:MICHAEL J. SOLTIS CHRISTINA FEENYANDFRANK RUDEWICZsoltism@jacksonlewis.com | jacksonlewis.comChristina.Feeny@Thomsonreuters.com | Thomsonreuters.com Frudewitcz@dbo.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 • 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 PotentialPrivacy 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) • E-Mail / Internet Issues • Eavesdropping • Recording Phone Calls • Electronic Monitoring • Taping

  23. Oh, the Places You Will Go…Causes of ActionInvolving 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!

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