gation should protect the rights,
privacy and confidentiality of the
employee making the allegation.
Once the investigation begins,
there should be no communication outside of the investigation
team to the media until the entire investigative team, including
counsel, has convened and agreed
on the company’s stance, investigative plan and the verbiage to be
presented in the communications
Following are three ideas to
consider when conducting investigations into #Me Too allegations.
Determining the Scope and
Type of Investigation
Never rush into any investigation
without a plan or considering the
best and worst outcomes an in-
vestigation might produce. Assess
each phase and the possible out-
comes. If the organization has ac-
cess and the financial ability to re-
tain outside counsel, they should
be involved in determining the in-
vestigation scope and accessed as
needed throughout the entire pro-
cess. Discuss the benefits of out-
side counsel vs. in-house counsel.
The investigative team should also
consider the following questions
in designing the overall investiga-
•How will we maintain
• Who will have access to the investigation plan, documents
• How will we identify witnesses
who will either support or deny
• Who will be interviewed?
• Where will interviews be
• How many interviews will be
conducted in each phase of the
• How much and what evidence,
data and documents should be
• What criminal and/or civil laws
apply to the allegation?
• What criminal or civil laws may
have been violated?
• Considering the allegations and
the parties involved, could the
case uncover further wrongdoing that may result in additional
• Is it possible that the allegation
and investigation may attract
attention from the news media,
law enforcement or any other
• Is mandatory reporting required given the allegation?
If the case moves into a “high
risk” situation based on these
considerations, retain external
counsel to assist in-house counsel
during the investigation.
The scope of the investigation
should be wide enough to collect,
preserve and analyze all evidence
and information obtained.
There are multiple aspects of
evidence to consider, and some
may require counsel to prepare a
release to access the data:
• Call records to and from all
• Call records of multiple calls to
friends and family during the
allegation time period.
• Texts between all parties.
• Various digital messaging platforms and apps.
• App logs and others.
Other evidence sources:
• Consider downloading all copy
machine memories that could
have been accessed by all par-
ties to the allegation.
• Photographs of a cubicle or office décor.
• Past and current office party or
In-person witness interviews:
• Victim’s list of witnesses.
• Employer’s list of witnesses.
• Coworker witnesses.
• Friend witnesses.
• Family witnesses.
• Associated witnesses – catering
staff, janitorial workers, facility
An important factor involves
keeping a continuing log of the
documents, evidence and inter-
view dates as they are collected
during the investigation. Involved
individuals will still communi-
cate, especially as rumors begin
to fly. Confidentiality
is important and com-
pany policies concern-
ing documents, emails,
telephone use and sur-
veillance should be in
place and current.
The Final Report
An investigation report
is a critical tool. Coun-
sel and management may want
more than one report, such as:
• Investigation – Findings of
facts and evidence.
• Recommendations report – A
report compiled by a completely different assessing body of
• Counsel review – This report
highlights the recommendations of counsel as to the potential evidence revealed and the
possible need to defend a claim
of harassment to include the
subject employee’s sanctions or
When investigating these
cases and claims, the investigator must remember that counsel
should be involved and that the
attorney-client privilege must be
maintained at all times. Choosing to be selective in disclosing
the facts involved in the case in
order to gain client or company
advantage could result in an argument before the court that
the attorney-client privilege has
been waived due to the information contained in the report.
Counsel should review and approve all reports before finalizing, placing into the case file and
During the investigation, the in-
vestigator may enter areas outside
of his or her personal expertise
and require the assistance of con-
sultants and other collaborators,
• Computer analyst – For inspec-
tion and evidence preservation
• Computer forensics analyst –
For evidence preservation
• Cellular telephone analyst
• Social media analyst – For
research and evidence
• Case law researcher
Improperly managed investigations can go south fast. Some executives, unions, boards or supervisors will try to impede the
investigation by concealing evidence or documents, or providing misleading statements. The
client, counsel and investigator
must make it very clear that truth-fulness and transparency are vital
and that statements from witnesses will be confidential, respectful
and free of bias.
Traditionally, the employer
bears the cost of the investigation
by appointing an investigator with
human resource oversight. Over
the past year, the #Me Too movement has generated a 25% increase in, or approximately 1,000
new cases into the spotlight of
These cases are not unusual,
however, as investigators have
been working to include gender
investigations for decades despite
interference by CEOs and those
who are far less famous and influential than some accused today. Even the most experienced
and principled investigators will
find themselves being pressured
by companies trying to mold an
investigation into a desired outcome or shaping the “truth” into
their own best interests.
The Ethics of #Me Too
Despite how hard investigators
try to be fair and impartial, they
will experience challenges to the
ethics and professionalism by the
powerful, rich and famous. The
investigator must adhere to an un-
biased and impartial approach to
each case. It is far better to lose a
case than to lose your integrity as
On the other hand, ethical
companies will seek to do the
right thing during the investigative process. They truly want fairness and impartiality to prevail.
Fact is, they might sanction the
subject employee with a loss in
salary or hold back a bonus but
then be forced to keep the information contained in the investigation under wraps to comply
with all privacy laws, restrictions
In these situations, other employees in the victim employee’s
company or department due to
the confidential closure of the
case are left with the impression that either the report was
concealed or whitewashed, or
the company chose to do nothing about the allegation. Caution
the team involved in the investigation that ending an investigation properly and ethically is
just as important as starting an
investigation the same way, as
a wrong decision in the ending
of a #MeToo investigation can
and has caused an explosion of
#Me Too claims to follow.
As courageous women present
claims based on fact and supported by real evidence and not
conjecture, there will be more
and more of these cases involving
high-ranking public officials, politicians, corporate CEOs, powerful
entrepreneurs and others who will
not be able to escape the exposure
and headlines of their behavior.
As a profession, we must create
and hold an ethical and professional standard and do more to
ensure that every investigation is
conducted fairly and every investigator is held accountable. n
CONT. FROM PAGE 1
Y Over the past year, the #Me Too movement has
generated a 25% increase in, or approximately
1,000 new cases in corporate America.
Y HR leaders must conduct an unbiased, ethical
and well-planned investigation.
Y Harassment investigations should include
a plan with the best and worst outcomes an
investigation might produce.