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How Do You Conduct an Undercover Corporate Investigation?

Keeping an internal corporate investigation undercover (or covert) can provide a number of benefits. However, keeping the investigation under wraps also presents certain challenges; and, if not handled correctly, efforts to maintain confidentiality can be perceived as efforts to cover up the alleged wrongdoing.

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When the need to conduct an internal corporate investigation arises, one of the first questions that needs to be answered is: Should the investigation be overt or covert? In other words, is it in the company’s best interests to immediately adopt a policy of complete transparency; or, should certain investigative measures be taken undercover in order to avoid certain challenges and increase the chances of efficiently gathering all necessary intelligence?

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Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Covert or Overt? When Should a Corporate Investigation be Kept Undercover?

In many cases, it will make sense for an internal corporate investigation to begin undercover. There are a number of reasons why this is the case. For one, until you have more information, you may not know what to tell your employees and customers. Oftentimes, the purpose of a corporate investigation is to determine whether there is anything that needs to be disclosed at all. If you are simply conducting your due diligence and being a good corporate steward, there may be no legal or business need to make the inquiry known.

For another, certain investigative means can be more effective when deployed undercover. For example, if an employee is unaware that she (or a co-worker) is under investigation, statistically, that employee is far more likely to be forthcoming during an informal interview. Likewise, efforts to collect and preserve emails, files, and other data can be much more efficient if no one has had time to try to hide or destroy them.

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7 Key Considerations for Conducting a Covert Internal Corporate Investigation

Let’s assume that an issue has arisen that necessitates an internal corporate investigation, and let’s further assume that the decision has been made to conduct the investigation covertly. What additional considerations are involved in conducting an undercover corporate investigation?

1. Can the Investigation Be Conducted Undercover?

Before going too far, it is worth asking whether it is truly feasible to conduct the investigation undercover. How many people know about the allegations that triggered the investigation? Are those individuals subject to an obligation to maintain confidentiality? Regardless, how likely are they to publicize the issue on social media? Is there a risk that someone may file a whistleblower complaint?

If efforts to keep the investigation covert only have a limited chance of success – or if there are simply too many unknowns to reach an informed conclusion – it may not be worthwhile to try to conduct the investigation undercover. It is also possible that these efforts could backfire, and that the attempt to conduct the investigation covertly could be perceived as a failed effort to cover up the allegations that triggered the inquiry.

2. What Strategies Will Be Used to Maintain Confidentiality?

If the decision is made to move forward with an undercover investigation, what strategies will need to be deployed in order to maintain strict confidentiality for the desired period of time? When, where, and how will employee interviews be conducted? How will meeting logistics be handled in order to avoid questions about why the leadership team is suddenly having regular meetings with outside legal counsel? If employees’ laptops or phones need to be seized or accessed by forensic information technology (IT) experts, how will this be done without raising suspicions?

Avoiding unwanted issues during an undercover investigation requires a meticulously-planned approach that takes into account past experience as well as the particularities of the company’s culture and the issue at hand. If an internal investigation is to be conducted covertly, there must be an executable plan in place, and everyone involved in the investigation must have a clear understanding of his or her role in maintaining confidentiality.

3. How Long Can Cover Be Maintained?

In some circumstances, publicity will be an inevitability, but it will still be possible (and desirable) to maintain cover for at least some period of time. If it appears that the allegations that triggered the investigation will become public due to factors beyond the company’s control, then all decisions regarding how the investigation is to be conducted need to be made with this fact in mind.

For example, if employees need to be interviewed, and if the interviews are likely to be more fruitful if the employees are unaware of the pending allegations, then these interviews should be prioritized. Likewise, if there is a risk that records will be erased or destroyed once the investigation is made known, then efforts to preserve these records should be prioritized while the investigation remains undercover.

4. What Documentation is Necessary to Avoid Implications of Evasiveness and Complicity?

People will draw inferences from the fact that your company has decided to conduct the investigation undercover. Regardless of how misguided those inferences are, they can nonetheless present employee relations challenges, public relations (PR) challenges, and potentially legal challenges as well.

With this in mind, thoroughly documenting all aspects of the investigation takes on heightened importance. From the reasoning behind the decision to conduct the investigation undercover to the information uncovered covertly and the conclusions drawn therefrom, the company should be thoroughly prepared to substantiate its decisions during and after the investigation should it become necessary to do so.

5. Who Should Be Part of the Investigation Team?

If it is necessary to conduct the investigation undercover, this means that it is also important to be extremely selective when assembling the investigation team. Information regarding the information should be shared exclusively on a need-to-know basis, and there should be no questions whatsoever as to whether any member of the team could potentially be implicated by the allegations at hand.

Typically, a covert internal corporate investigation team will be comprised of the company’s outside counsel, senior in-house lawyers, and high-level members of the company’s executive leadership. Certain lower-level specialists (such as IT specialists) may need to be brought in as well; however, all such individuals must be thoroughly vetted prior to being made privy to the subject matter of the investigation.

6. Is Voluntary Notification or Disclosure Required?

Another factor to consider is whether any form of voluntary notification or disclosure is required. For example, in the case of a data security breach involving consumer information, all affected consumers may be entitled to notification—and this could be the case even if a breach has not been definitively confirmed. Likewise, companies in various sectors have federal self-reporting obligations; and, here too, it may be necessary to self-report a potential issue while it would also be preferable to keep the investigation covert with regard to employees and customers.

Companies must be extremely careful when dealing with voluntary notification and self-reporting requirements at the federal level. When complying with disclosure requirements, it is absolutely essential not to unnecessarily reveal any information that could trigger legal exposure or reputational harm. Depending on the circumstances involved, it may be possible to meet a self-reporting obligation while also preserving confidentiality; however, doing so requires a strategic and thought-out approach, and this is a task that should be handled by experienced outside legal counsel.

7. When (If Ever) Will the Investigation Be Made Overt?

Finally, when deciding to keep an investigation covert, it is also necessary to begin thinking about when the investigation will be made overt (i.e. disclosed to employees, the government, or the public at large). This decision does not need to be made immediately—and it may not be possible to make it immediately given the information that is currently available—but due consideration should be given to both how and when (if ever) it will be in the company’s best interests to make the investigation known.

Ultimately if the concerns or allegations that triggered the investigation prove to be legitimate, then some sort of remedial action will be necessary. Whether, and to what extent, this means disclosing the investigation will depend heavily on the specific factual circumstances and legal issues involved. As with all aspects of the investigation, informed decisions need to be made based on the advice of legal counsel, and legal counsel should be engaged to assist with the development, implementation, and execution of remedial measures as well.

Is your company facing allegations that have the potential to lead to litigation or civil or criminal enforcement action? Has an issue been uncovered internally that could put the company’s future at risk? If so, then your next step should be to discuss your options with experienced corporate investigations counsel. To speak with a senior attorney at Oberheiden P.C., contact us today.

Contact Oberheiden P.C. | Corporate Investigations Counsel Serving Companies Nationwide

Oberheiden P.C. is a federal law firm with a nationwide presence that provides compliance and defense representation for public and private companies. If you have questions about conducting an undercover corporate investigation and would like to speak with one of our attorneys, please call 888-680-1745 or inquire online now.

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