Have you ever wondered how the best attorneys approach a high stakes internal investigation? What factors do General Counsel need to consider when hiring outside counsel to write an internal investigations report or summary memo? Clearbrief’s CEO, Jacqueline Schafer, recently interviewed David DeVillers, a partner at Barnes & Thornburg in Ohio, as part of a Clearbrief series on the unwritten rules of legal writing. David chatted with Jackie about how he brings his extensive experience as a career prosecutor to bear on his white collar and internal investigations work, including his best tips as you’re starting an internal investigation.
How would you describe your practice?
My focus is on white collar criminal investigations and internal investigations for corporations and other business entities. I was a U.S. Attorney and an AUSA before that. I’ve worked on high profile university cases involving a young man who died in a hazing death, SEC cases, antitrust cases, grand jury investigations including complex RICO cases. I’ve also done a lot of international work, including participating in the war crimes trial of Saddam Hussein in Iraq. My years of government experience have certainly informed how I advise private sector organizations facing white collar criminal defense inquiries from the government, or companies that need to conduct an internal investigation.
Government investigations are a whole different animal compared with private investigations. When you’re in government, you have subpoenas as a tool. In the private sector, you have to get people to talk to you.
Let’s come back to your point about getting witnesses to talk with you in an internal investigation. What is your approach when you start working on an internal investigation for a corporate client? How do you partner with in-house counsel and the business department?
The first thing to think about is that you want the engagement letter to define what it is the corporation or the General Counsel expects from you - it really does depend a lot on who the client is. If it’s a university, there are a lot of privilege issues, they really hold tight on privilege, rightfully so, and different districts have rules about what will be released. For example, in the 6th circuit, you can’t just release a portion of a privileged document, or the privilege could be completely lost. The goals of the final work product (like a memorandum, a report, a pre-litigation strategy document) should be defined in the engagement letter.
When you’re drawing up your witness list and figuring out your strategy for witness interviews,
one counterintuitive tip is that for the people who you think are the most important to talk to, you actually don’t start with those people.
You go to others who can give you more of a general background and help you understand how the company works. Knowing those facts will give you background information such as names and dates. From there you work your way up to the people who will probably have most of the meat.
You often have to re-interview people, and you should anticipate that. For example, you might learn something from the 6th witness that makes you realize you need to go back and ask the 1st witness something.
You should consider whether the client has investigators on staff who can assist you as outside counsel, and what sort of process the client has in place for workplace investigations. For example, a lot of the universities have Title 9 investigators. The privilege still attaches to those conversations. However, those investigators may not be trained in the specifics of the type of investigation you’re working on, and can tend to go down a broader path of asking questions that aren’t relevant to the specific issues in the case, like “What is your life story?” These are time consuming digressions. They forget that this student or teacher or person has a life too. You want to get the questions out that are pertinent and not have the interviewee divulge personal information that is not relevant. If you do plan to work with the corporation’s staff, make sure you have prep conversations beforehand to clarify these things.
Are your interview notes saved digitally or on notepads? What is the end work product that you provide to in-house counsel?
It depends who I’m doing the investigation for. With GCs, I will usually tape and record the interview. If I’m doing an internal investigation with a company, they usually don’t want a recording and instead notes are my work product. In that case I will also have an associate with me to help take the notes.
When the work product is notes, I have an associate help me to take notes. I take handwritten notes and my associate types the interview verbatim.
One of the things that helps minimize the apprehension of witnesses in the (admittedly stressful) internal investigations interview process is to explain privilege to them. Privilege belongs to whoever has hired me, such as the company or the university, and not necessarily the witness. You explain that you can’t say anything anyone says without the client allowing you to. This actually actually gets witnesses to talk. They realize that even though the privilege doesn’t belong to them, what they say to you won’t necessarily leak out or become public information.
In criminal cases, because of Jencks, prosecutors have to produce verbatim transcripts or notes pertaining to the testimony of government witnesses. If there is a potential for the interviewee to give testimony for the prosecution, I tend not to record the interviews. Instead I take handwritten notes of the key points, which I compare to my associate transcripts to make sure there are no inconsistencies.
My associate will then write up a summary.
This set [of notes] is useful because I may be interviewing 20 or 30 people and will need to create a chronology based on the evidence I’ve gathered.
I can’t put together all this information by myself, which is why I rely on my associate.
How do you bring in the evidence that relates to that chronology?
There may be other evidence besides witness interviews that fits into this chronology. For example, with investigation at Bowling Green University, I had the rules and regulations of the school, the constitution of the fraternity, pledge books, some text messages, and emails. In these cases, I usually cite directly to the evidence.
What are some of the practices that companies can perform to ensure a smooth internal investigation? Any advice for in-house counsel?
GCs and in-house counsel should not be shy about sharing the information that they know. Sometimes GCs want to be independent and are afraid of passing on information to me. But they should not be overly concerned about giving helpful advice, particularly about who to talk to. The help they give provides me with a starting point, which facilitates the investigation for the company or the university.
How does your public interest background make you a great lawyer?
Working on RICO cases provided me with really valuable experience that I can still apply. Indictments for organized crime can be massive and involve various actors. In a RICO case you have an organized enterprise and you have to identify the moving parts.
That’s how I look at doing most of my criminal investigations. They usually don’t just involve one bad actor. It’s a lot of people and a lot of moving parts. I parse through all these moving parts and try to develop a chronology. This allows me to better create a final report for a client, where I explore the culpability of individual actors as part of a system.
My government background also allows me to understand indictments in a different way. I can advise clients whether they need to retain me for a full investigation, should wait before deciding on an internal investigation, or steps they can take without needing to retain me. This actually gives me more credibility because I’m honest about when a client doesn’t need my assistance.
Are there any learnings from your time in the government that you think would be useful for other lawyers to know?
Working as a government lawyer provided me with an understanding of how prosecutors will pursue certain white collar cases. For example, in SEC cases if the amounts are in the tens of thousands or even hundreds of thousands, a prospective client should not be too worried because the amounts are below the threshold for criminal prosecution. But if the case is related to money laundering or a pyramid scheme you don’t need millions of dollars or even hundreds of thousands in order for the government to pursue criminal prosecution.
Another takeaway from my time in government is that it’s totally fine to open up dialogue with the prosecutor’s office. A lot of lawyers are shy about reaching out to prosecutors early on in the case. But doing so can give you a lot of useful information. You can understand the probability of a person being called as a witness. Prosecutors can also inform you about what they’re focusing on or where they are digging for evidence. With this information you can save substantial amounts of time and understand where you should focus your own efforts.
Also, even after a criminal investigation is resolved, corporations must ensure they are prepared for the scrutiny of DOJ monitors. DOJ will appoint a private law firm to monitor a company when there is a Deferred Prosecution Agreement. Since the DOJ has no “probation” department, they use outside counsel to make sure the company is complying with the agreement. The Deputy Attorney General has recently indicated that the DOJ intends to rely heavily on monitorships in the future.
What makes your General Counsel clients happy?
GCs are happy when they get updates and they gain a better understanding of the timing of the final work product. I can’t give them a draft of my report because it could call into question the independence of my investigation. But there are certain things that I can do with them such as go over evidence I have uncovered or read my conclusions to them. This allows me to keep them abreast with the investigation but also confirm whether my investigation is capturing what they hired me to look into.
