What documents do you need see during a workplace investigation?

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

Comprehensive workplace investigation files include paper and electronic documents

Personnel files are good to see during a workplace investigation. It gives you a feel for people that you otherwise won’t have. You need to ask every witness for documentation. On the other hand, you don’t want them going on a hunt for documents. So you need to emphasize that you do not want them spending a lot of time going through files or searching through the workplace because you need to keep the investigation and its subject confidential.

Electronic document preservation

Electronic evidence is extremely important during workplace investigations. The Federal rules of civil procedure were amended to make very specific the duty to produce electronic evidence in cases and the duty not to destroy it.

A company has an obligation to preserve documents when it is on notice of potential litigation. It is somewhat metaphysical trying to figure out when that precise moment in time hits. But chances are, if the company thinks it has to conduct any workplace investigation of an issue, that’s probably the point in time when the document preservation obligation begins. If you think it’s serious enough to start a workplace investigation, it may someday end up in litigation and you should preserve documents.

One mistake being made is people not realizing that the somewhat innocent step of opening up a Word document and reviewing it can alter the metadata within the document. That is every Word document, if you click on the Properties Field in the upper left hand corner of your screen will show you who the author of it was, the date it was created, the number of edits and so on and so forth.

Guess what, when you open it up, you’re the most recent editor of it. That will be recorded in the document. It may look at a later date that you are tampering with the document.

Don’t open the document
So as a rule of thumb, try not to actually look at the original Word documents themselves. Have copies made and then review the copy and preserve the original in its pure state where you have not altered the metadata.

It’s a little bit hard to do when you get email in your inbox that says, you know, “Harassment emergency. I need your help” and there’s a word document attached, maybe in that instance, it’s okay. You’ve got a good explanation as to why you opened it. But if it’s – you have a little bit more time. It’s a good practice to preserve the original electronic documents in their original state and work from copies during a workplace investigation.

There are many forensic IT professionals out there. Some companies have very highly experienced people who are good at this. Some companies don’t and you may need to get external help. But if you have questions about whether what you are doing is altering the documents, there are people out there who can answer that. You should be asking those questions.

Train of custody is key in workplace investigations
You need to create a train of custody for key documents. That is if there is a smoking gun document, it needs to go into the file immediately. It needs to be left there so that it can’t be tampered with whether it’s electronic or whether it is a paper document because you will need to prove to a judge or jury at a later date that the document was in a place where it could not be tampered with and is in the state in which you found it during your investigation.

Don’t forget to follow-up with witnesses based on questions that you get from – so in a normal workplace investigation, you’ll be taking statements from witnesses, you’ll be collecting documents from witnesses along the way. You will need to review and go back over the documents that you’re getting to see if you need to follow-up with witnesses you talked to previously about issues that are raised by documents you get from other people at a later date.

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