Corporate investigations and legal considerations

by on May 5, 2009 · 0 Comment POSTED IN: HR Info Center

Attorney-client privilege, retaliation, and electronic evidence are all areas of legal concern during corporate investigations

Attorney-client privilege
The legal considerations during a corporate investigation start off with the attorney client privilege. That is, the first question you should ask is whether the company wishes the corporate investigation file to be privileged from disclosure to third parties outside the company.

Many times, a corporate investigation will be conducted under the supervision of internal lawyers or external lawyers will be brought in to do the investigation, which allows the company to appropriately claim the attorney client privilege.

The privilege may be waived at a later date depending on how the – whether there’s a lawsuit and whether the company wants to use the content of the corporate investigation file to defend itself.

There may never be a lawsuit and you may never get to the point of waiving the privilege. It’s important to establish the privilege in the beginning by creating a documentary record that it is under the supervision of counsel and that the documents are labeled “Attorney client privilege” or “Attorney work product” depending on what’s appropriate in order to preserve the privilege.

Retaliation claims
Other considerations to keep in mind under the employment laws where employee complaints of discrimination, harassment and retaliation are frequent. It’s costly doing business these days, remember that retaliation is the easiest claim to prove. All that an employee has to show is that they engaged in protected activity, that is raising a concern about discrimination or harassment and that they suffered adverse action as a result of that under the Burlington Northern Standard.

The bar for proving the quantum of conduct necessary to become retaliation is pretty low these days and a causal connection between the protected activity and the alleged retaliation.

Electronic evidence
Last but not least, evidence today, most lawsuits today turn out electronic evidence, usually e-mails, sometimes IMs with increasing frequency, twits on Twitter and other kinds of Skype and other electronic communication that are beginning to come into the workplace as people bring their devices into the workplace and use them whether or not they’re telling the company that they’re using them. So preservation of electronic evidence is critical.

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