Barry Pollack Shares His Advice on Conducting Internal Investigations in Inside Counsel
“Conducting Internal Investigations: 8 Important Steps”Inside Counsel
As corporate internal investigations have become increasingly commonplace, Barry Pollack offers tips for companies going through the self-investigation process. Pollack says,"If this is an investigation that’s likely to be scrutinized by the government, [ensuring any potentially relevant documents are preserved by issuing a litigation hold that suspends any routine document-destruction practices and makes clear to all relevant parties that they must preserve documents or communications related to the investigation] will be a crucial step. One of the biggest pitfalls [in investigations] is that you might have an allegation that, at the end of the day, the government would not have pursued, but because they have concerns about after-the-fact destruction of evidence, they pursue it."
For companies cooperating with government agencies or prosecutors, another decision is when in the investigation process to self-report to the government, either in real time or after the investigation’s completion. Pollack says that the decision on the timing of self-reporting to a government agency can be a critical one. "Having the government involved can add tremendous cost, which you wouldn’t have had to incur had you done an investigation first and then decided it wasn’t something that needed to be reported," Pollack says. On the flip side, if you decide to report after the investigation process is complete, the government may discover the underlying conduct before you report, which means less government buy-in to the design of the investigation and less credit for cooperation. "The government will tell you that you get significant credit [for cooperating] but, speaking anecdotally, it depends on the seriousness of the offense, how regulated your industry is and, frankly, a bit of luck," Pollack says.