The Art of the

Witness Interview

November 2, 2017

Speaker Biographies

Danielle Carter

Smiths Group plc

Danielle Carter is Associate General Counsel Ethics &

Compliance at Smiths Group plc. Danielle has responsibility

for conducting and managing the company’s internal

investigations, advising senior management on compliance

issues, and developing and conducting training to ensure

compliance with applicable law and internal company

standards. Prior to joining Smiths Group, Danielle was a

partner at Sidley Austin where her practice focused on

defending corporations and individuals in investigations and

enforcement actions brought by government agencies and

other regulators.

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Speaker Biographies

Steven N. Siegel

Northrop Grumman Corp.

Steve Siegel is Senior Counsel, Investigations in Northrop

Grumman’s Law Department. Steve directs and conducts

significant investigations across the company’s business

sectors, manages responses to government investigations

and enforcement actions, and advises the Corporation

regarding its duties and responsibilities under federal, state

and foreign laws and regulations. Prior to joining Northrop

Grumman, Steve was the Deputy General Counsel for

National Security Law at the FBI and previously served as a

prosecutor at the District Attorney’s Office in Queens County,

New York; the U.S. Attorney’s office for the Eastern District

of New York; and the Department of Justice, Criminal

Division.

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Speaker Biographies

Stephen L. Cohen

Sidley Austin LLP

Stephen Cohen, a partner with Sidley Austin, has over a

decade of experience at the SEC, having most recently

served as associate director in the agency’s enforcement

division. Steve advises clients on a broad range of

government and internal investigations, enforcement-related

litigation, whistleblower complaints, congressional matters,

and regulatory and compliance issues, including clients

seeking to establish or strengthen compliance programs.

He is a member of the Securities & Derivatives Enforcement

and Regulatory practice, recognized by Chambers as the

“Financial Services Securities Team of the Year” in 2016.

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Speaker Biographies

Kristin Graham Koehler

Sidley Austin LLP

Kristin Koehler, a member of Sidley Austin’s Executive

Committee, has handled numerous United States

Department of Justice (DOJ) criminal and civil investigations

involving healthcare fraud, antitrust, securities fraud, and

violations of the Foreign Corrupt Practices Act (FCPA). She

has significant experience representing clients in qui tam

matters, State AG investigations, and congressional

investigations, and has negotiated numerous Corporate

Integrity Agreements with the HHS Office of Inspector

General. Kristin routinely counsels clients on the creation,

enhancement, and implementation of compliance programs.

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Strategic Considerations Before Interviewing Witnesses

Invest time to plan your strategy:

– Understand the issue and where it fits into the business

– Is a government agency investigating the same conduct?

– Determine the best logistical approach:

• Who can – and should – assist investigative team to understand the issues?

• Who may be involved in the alleged conduct?

• What interpersonal dynamics are involved?

– Determine actions to take in advance.

• Collect/review documents?

• Covertly or overtly?

• If overtly, how far/wide to send document hold?

• Any disclosures required by the jurisdiction?

– Determine who should participate:

• In-house counsel /outside counsel

• Compliance/Audit/HR

• Others?

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Determine Interview Logistics

• Goal of witness interviews

– Obtain relevant factual information

– Test the information against documents, information from other interviews, and any

additional information gathered

• Develop a list of witnesses to be interviewed

– Determine scope of persons to interview to effectively obtain information from different

perspectives

– Interview employees with first-hand knowledge about misconduct, employees who may

have been party to after-the-fact discussions, and, if applicable, any employee who has

been contacted by a government investigator

• Decide timing and order of interviews

• Determine location and setting

– In-person?

– Telephonic?

– Video conference?

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Ethical Issues

• Address and discuss in advance:

– Issues associated with a company representative interviewing an individual employee

• Actual or perceived conflict of interest?

• Must clearly explain that the interviewer does not represent the employee

– Adequate Upjohn warning

• Maintain confidentiality of communications and materials prepared

– Does the witness/employee have exposure?

• From within the company?

• Outside the company? To whom?

• Impact on approach?

– Issues related to lawyers as potential witnesses

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The Whistleblower Issue

Source: http://staffingtalk.com/wp-content/uploads/2011/11/whistleblower-cartoon.jpg

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Whistleblower Issues

• Be solicitous and open-minded

• Assume conversation will be shared elsewhere

– Underscore privilege, if applicable, but make it clear that facts are not privileged

• Communicate company's good-faith interest in understanding allegations

– Avoid becoming defensive

• Put onus on whistleblower to share information

– Avoid expanding scope of allegations

• Special considerations related to documenting whistleblower concerns:

– Ensure steps in receiving and responding to the internal whistleblower report are documented, proper warnings are

given, and all evidence is preserved

– Communicate policy on anti-retaliation

– Address confidentiality and privilege issues from outset

• Consider possible whistleblower-specific warning as part of Upjohn

• Make clear confidentiality does not prevent lawfully providing information to government

– Documenting basis for any applicable discipline especially important:

• Based on misconduct, not complaint

• Are past transgressions well documented

• Ensure strong HR function/training

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Address Privilege and Work Product Issues

• In general, the attorney-client privilege protects confidential communications

made for the purpose of securing legal advice

• In order to protect privileged communications during an investigation, in

preparing to interview witnesses, counsel should:

– designate privileged material as such

– limit dissemination of privileged material on a need-to-know basis

– avoid conflicts of interest

• Additional privilege issues related to disclosure to auditors and privilege laws in

non-U.S. jurisdictions

• Work product doctrine protects documents prepared by counsel, or at the

direction of counsel, in anticipation of litigation

– Are witness interviews being conducted “in anticipation

of litigation”?

• Yes, if active government inquiry has commenced.

• Maybe, if solely an internal review. If taking a position

in the internal investigation that litigation is reasonably

anticipated, note the need for document preservation measures.

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Consider Joint Defense Privilege Issues

• Joint defense privilege essentially extends the attorney-client privilege and work

product doctrine to confidential communications designed to advance the

representation of parties sharing common interests

– Frequently used between company and employees in investigations

• When using a joint defense agreement with counsel to witnesses, consider

memorializing the agreement in writing

– Required by some courts – check the applicable jurisdiction

– Agreement should specify that communications are confidential

• Disclosure of confidential information among members of agreement does not constitute a waiver

of attorney-client privilege or work product doctrine

– Clearly identify parties to the agreement and define the “common interest”

• Particularly important in light of Yates Memo

• Continue to assess whether the company’s and each individual’s interests are aligned

• Carefully consider information to be shared under the agreement

• Evaluate privilege in light of potential cooperation issues under Yates memo

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Consider Joint Defense Privilege Issues (cont’d)

Additional considerations for joint defense agreements:

• Agreement should prevent disclosure of confidential information by any member

of group to third party unless member that provided the information agrees

– Agreement should make clear that confidentiality requirement remains in force for

members who withdraw from group

– Joint defense agreements usually permit members to withdraw only upon express

notification to other members

• Agreement should make clear that joint defense agreement does not give rise to

attorney-client relationships between party to agreement and counsel for another

party

• Agreement also should state that parties understand and agree that sharing

privileged information will not be basis for disqualifying counsel or claiming

conflict in event that one or more parties withdraws from joint defense or

otherwise becomes adverse

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Key Takeaways: Strategic Considerations

• Take time to plan!

– Determine issues to be addressed, logistics of the interviews, and actions to take in

advance

– Plan for and address potential ethical issues

– Ensure interactions with whistleblowers are fully documented

– Think through and address individual representation issues

– Assess potential cooperation issues implicated by Yates Memo

– Establish a joint defense agreement and protocol, as needed

– Set up procedures to maintain privilege and potential work product protections

– Institute procedures to manage joint defense privilege issues as applicable

• Communicate the plan to team members – internal and external

• Assign points of contact for distinct projects and tasks

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Conducting the Witness Interview: Before You Begin

• Be prepared

– Know as much as possible about the witness

– Know as much as possible about the background facts

• Assemble helpful organizational documents

– Chronology of events

– Key players list

– Organizational chart

• Identify key substantive documents

– Know the documents, especially those relevant to the witness

– Prepare a “Key Documents” binder

• Chronological order with relevant portions highlighted

• Identify privileged documents with a red cover page

• Prepare an outline to guide your questioning

– Include questions regarding key documents

– Be prepared to deviate from the outline15

Conducting the Witness Interview

• Company should let employees know in advance

– Company expects them to participate fully in the investigation

– This means they must retain and produce documents, submit to interviews, and be truthful and candid

• Have another attorney/investigator attend the interview to take notes and serve as witness

to interview process, if necessary

• During the Interview

– Explain the nature of the investigation and purpose of the interview at the outset

– Set the tone: Be collaborative and courteous, not adversarial, and tailor style to particular witness

– Give admonitions:

• Upjohn warning

• Preserve potentially relevant documents

• Contact with third parties/government

– At the conclusion of the interview:

• Ask if there is anything else that the witness wants to disclose

• Encourage the witness to reach out if anything else comes to mind

• Remind witness of their obligation to keep substance of the interview confidential

• Remind witness the discussion is privileged

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Maintaining the Privilege: Upjohn Warnings

• We represent the company and not the employee

– Ethical obligation to disclose possible conflicts between the employee’s interests and

those of the company

• Conversation is protected by the attorney-client privilege, but the privilege

belongs to the company

• Company can choose to waive the privilege and disclose all or part of what the

employee has told counsel during the interview to third parties, including the

government

• Optional whistleblower add-on:

– Reiterate that conversation is privileged and confidential, meaning employee cannot

disclose communications with counsel to third parties, including the government

– Privilege extends to communications, not to underlying facts

– Confidentiality does not prevent lawfully providing factual information to federal

regulators

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Practice Tips: “To Do” During Witness Interviews

• Tips on asking questions

– Use an outline – but go where evidence takes you

– Ask open-ended questions to prompt the witness to give one-way information

– Use the documents to refresh, explain and confront

– Target conflicting testimony between witnesses and documents, and explore events

surrounding the conflicting testimony

– Follow up on questions asked; no loose ends

– Build up to the tough questions, and be sure to ask the ultimate question

– Assess witness credibility throughout but document separately

• Tips on taking notes

– Be mindful of possible future disclosure, even if the interview is conducted by or at the

request of counsel

– Focus on facts collected, not impressions or opinions

– In assessing credibility, use caution and consider context

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Practice Tips: “Don’t Do” During Witness Interviews

• Be too accusatory or too familiar

• Leap to conclusions – keep an open mind

• Ask leading questions or give information

• Interview before reviewing documents, if possible

• Fail to preserve evidence

• Interview without a witness to the interview

• Fail to make a sufficient record of the interview

• Let the witness dodge questions or responsibility

• Get fooled!

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Practice Tips: Interview Memoranda

• To prepare or not to prepare?

• Type of documentation to prepare:

– Formal memo

– Bullet point summary

– Handwritten notes

• Necessary intro paragraphs:

– This memorandum reflects information obtained during interviews conducted on [X date] by [Counsel] of

Sidley Austin LLP.

– Prior to each interview, we described the purpose of the interview. We stated that we represented the

Company and were not the witness’ attorneys. We explained that the interview was to gather factual

information that we would use in providing legal advice to the Company. We stated that the conversation

was protected by the Company’s attorney-client privilege and that the Company could decide, at its

discretion, whether to disclose the conversation. We asked each witness to keep our conversations

confidential, and each agreed to do so.

– The purpose of this memorandum is to record factual information necessary to provide legal advice to the

Company. This memorandum does not contain a verbatim, or substantially verbatim, transcript of the

interview. Rather the memorandum sets forth our thoughts, impressions, conclusions and opinions in

connection with the pending matters involving the Company. In particular, this memorandum reflects our

judgment as to the relevance of certain information and the interpretation of factual disputes. This

memorandum incorporates privileged and confidential information and is protected by the attorney-client and

work product privileges.

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Key Takeaways: Conducting the Interview

• Be prepared!

– Gather and review facts, including key documents

– Prepare chronology, key players list and other helpful resources

– Prepare an outline

• Provide important admonitions

– Company expects participation, cooperation and truthfulness

– Give Upjohn warning, including whistleblower language if applicable

• Ask appropriate questions and follow-up

– Tailor your approach based on the witness and evidence that emerges

• Include appropriate participants in the interview

• Thoroughly record the facts

• Document the interview appropriately

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Common Challenges in Conducting Witness Interviews

• Having to conduct an interview before you are ready

– Prepare a rough outline based on information currently known

– Take another attorney to the interview to collaborate, take notes

– Inform the witness they may be called again for follow-up questions as additional

information becomes known

• Handling difficult questions frequently asked

– Do I have to talk to you?

– Will you tell anyone else what I have to say?

– Do I need my own lawyer?

– Will the company pay for my lawyer?

– Should I talk to the government?

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Common Challenges in Conducting Witness Interviews

• Dealing with uncooperative or openly hostile witnesses

– Remind them of their obligation to cooperate in the investigation as required by their

employer

– Do not escalate or argue with a witness

• Dealing with witnesses you know are lying to you

– Confront with contradictory evidence – documentary and testimonial

– Remind them of their obligation to provide truthful answers and potential consequences

if they don’t

– Do not call the witness a liar

• Implication of the Yates memo

– May necessitate obtaining counsel for employees, executives earlier in the process

– May require more detailed Upjohn disclosure

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Key Takeaways: Common Challenges

• When conducting interviews before you are ready:

– Prepare a rough outline

– Include another attorney

– Inform the witness of likely follow-up

• Respond to difficult witness questions by reiterating admonitions given up front

– Stick to providing facts

– Do not give legal advice

• Stay calm – do not argue with uncooperative witnesses

• Confront an untruthful witness with contradictory evidence

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The Art of the

Witness Interview

November 2, 2017