Big Names, Big Stakes: Navigating Challenges in High-Profile Investigations

Investigations involving high-profile or powerful accused parties—like those publicized in the news media in recent months—present particular challenges for both investigators and the outside counsel who advise affected companies. As these cases receive public attention, they encourage others to come forward with similar stories. Thus, while most investigations involve fairly recent conduct, high-profile cases often implicate conduct that occurred years—or even decades—ago. As a result, investigators will more likely encounter difficulties in locating witnesses or evidence, evaluating stale memories and incomplete written records, and navigating various other evidentiary and analytical challenges.

As independent investigators, we are often called in when the stakes are high, giving us substantial experience with the unique challenges that arise when sexual harassment and misconduct allegations involve powerful parties. We have investigated allegations against powerful individuals ranging from executives to celebrities, including numerous cases arising out of the entertainment industry as a result of the recent #MeToo and #TimesUp movements. This article shares some of our insights gained in conducting these high-stakes investigations, built upon our firm’s collective experience conducting over 500 investigations across a wide variety of subjects and industries.

Evidentiary Challenges

Because high-profile cases frequently involve conduct that took place years prior, they present particular evidentiary challenges. Often, a complainant can identify numerous witnesses, but neither the complainant nor the company can access those individuals. Relevant witnesses tend to have moved on from the company, leaving behind minimal or outdated contact information.

If internet searches and social media fail to locate a witness, the investigator should weigh the importance of finding the witness against the potential downsides of using less conventional methods such as engaging a private investigator (which can be costly and could seem overly invasive), or asking around for anyone still in contact with the witness (which could broadly disclose the witness’ involvement and allow others to taint the witness).

Establishing contact with witnesses is only half the battle. In entertainment contexts especially, the company may have contact information for witnesses but no clear employment relationship. While a company can compel employees to cooperate in an investigation (because they have a statutory duty of loyalty to the employer), it has no such recourse for independent contractors or other third parties. Interviewing non-employees also creates the potential for disclosure of the company’s confidential or sensitive information to outside parties, and it can increase the risk of adverse publicity.

Witnesses with no legal duty to cooperate may hesitate or refuse entirely. They may fear repercussions from alienating the influential people involved, or they may despair of anyone actually taking action against a powerful accused party. An investigator should politely attempt to persuade third party witnesses to participate, but should be careful not to be too pushy or overbearing, as this could backfire and cause the witnesses not to cooperate at all.

Even when the investigator can locate a witness and that person cooperates, the investigator then faces the additional challenge of evaluating the reliability of old memories. After many years, witness recollections may be spotty or flatly incorrect as to certain details. Memories may have been tainted or influenced in various ways and at various times over the years, perhaps by what the witness has read in the press or by questions posed to the witness by the complainant, the respondent, or involved attorneys.

To minimize these issues, investigators should act quickly to reach potential witnesses before third parties do. Also, if a company’s outside counsel wants to speak with witnesses, the investigator should warn the company that these other individuals—who may frame their questions in a less neutral manner—may alter witness memories via suggestive questioning. If counsel insist on conducting their own interviews, these should ideally take place after the investigator’s interviews are complete.

Documentary Evidence

Documentary evidence mitigates the problems of witness cooperation and fallibility of memory, but in cases involving years-old conduct, it has its own challenges. Assuming the company backed up its emails at all during the relevant time, such backups may exist only on outdated forms of technology and may be costly to recover. Investigators should also be aware of prior server migrations or incomplete backups that could result in the retention of some emails and not others.

Text messages notoriously rank among the most likely sources of relevant evidence, yet they are among the least likely formats to be retained. While some applications automatically archive and indefinitely store all text messages, others do not. The investigator should inquire into cloud-based backups and the existence of old cell phones. A forensics specialist can often recover important evidence from outdated mobile devices, even those with non-functional batteries, broken power buttons, or dead screens.

Even HR records such as personnel files, investigation files, and disciplinary records—usually among the most readily available evidence in a typical case—can be frustratingly hard to locate after many years. The relevant HR representative may have departed, making record location difficult if HR custodians kept poorly organized records, or failed to keep a file on the issue at all. Investigators should not only inquire about any notes or files inherited by those who succeeded the relevant HR representative, but also evaluate all other possible options, including searching HR’s local hard drives, shared drives, decommissioned note-keeping programs, and hard copy files archived in offsite storage.

Attorney Involvement

High-profile accused parties or witnesses often retain counsel to represent them for purposes of investigations and interviews. As the recent #MeToo cases illustrate, allegations against high-visibility individuals frequently involve assault or other criminal conduct that implicates not only the alleged perpetrator, but also witnesses who could be charged with aiding and abetting or other criminal misconduct. Thus, attorneys may block access to important witnesses entirely. Obviously, attorney investigators should exercise caution not to run afoul of ethical rules regarding ex parte contact by communicating with represented parties absent their attorneys’ knowledge and consent.

Attorneys who do allow their clients to sit for interviews will almost certainly insist on attending. If the investigator expects interference from the attorney, it may help to set ground rules ahead of time about the need to hear substantive evidence directly from the witness and not from counsel. The investigator will have to exercise judgment during the interview as to what interjections by counsel should be tolerated (such as a gentle reminder to describe an incident the witness has not mentioned), versus those that merit suspension of the interview (such as repeatedly interrupting, disagreeing openly with the witness’ statements, or offering substantive information).

If the allegations involve criminal conduct, attorneys may advise witnesses not to answer certain questions and avoid self-incrimination. The investigator will have to determine whether it is fair or reasonable to draw an adverse inference in such cases.

Credibility Determinations

Credibility determinations, already one of an investigator’s more difficult tasks, grow even more complicated in these types of cases. Where the alleged incident occurred fairly recently, investigators can more fairly make adverse reliability and credibility determinations against witnesses with poor recollection or inconsistent memories. On the other hand, where the conduct occurred years ago, investigators must allow a certain amount of leeway for the inherent fallibility of memory—but how much?

Resolving inconsistencies in such cases requires additional consideration of how much credence certain types of evidence deserve. Contemporaneous writings are more reliable than human memories. In turn, human memories are more reliable when the person directly observed the events rather than heard about them secondhand from another source. If no one directly witnessed the event, someone who heard about the incident within days may be more reliable than one who heard about it much later. Also, a witness who recounted an incident several times to different people close to the time of the incident, thus solidifying the memory, may be more reliable than one who has not thought about the incident for ten years.

While high-profile sexual misconduct cases involve sensitive subject matter where the complainants may have suffered very real harm, investigators cannot ignore the potential motivations of the witnesses. Attorneys for accused parties frequently argue that the complaining party has some opportunistic motivation to distort the truth—such as fabricating allegations outright, misrepresenting certain actions, or exaggerating the resulting harm—in order to capitalize on the potential for fame or monetary gain. To ensure fairness, the investigator should consider whether credible evidence exists to support such a theory.

Investigators should also keep in mind psychological principles that shape witness narratives. Memories are notoriously fallible, and they can be influenced or modified over time as they become part of a person’s internal narrative and are incorporated into that person’s identity. The more time has passed, the more opportunities exist for complainants, accused parties, and other witnesses to selectively remember, forget, or reshape details that did not fit their personal narrative.

Reasonableness and Thoroughness

The investigator’s task of trying to piece together what happened grows more complex the more time has elapsed, as the more readily available evidence is often scant and spotty. This complicates the question of how far the investigator should go to meet the legal standard of a reasonable and thorough investigation. Costlier measures that may be avoidable in simpler cases where witness’ memories align may become necessary if ordinary measures yield insufficient evidence.

For example, if a complainant cannot remember exactly who witnessed an incident, but she can narrow the universe down to twenty people, is it reasonable to interview all twenty? Perhaps the investigator can narrow the list based on time frame, employee records, or other witnesses’ recollections. If not, the investigator may have to make tough decisions about the costs and expected returns of interviewing all twenty people versus other measures.

Evaluating Fairness in Making Findings and Conclusions

The dynamics of high-profile cases create potential imbalances in witness availability, especially where the accused has better connections and a greater ability to call in favors. For example, the accused may have access to the guest list for the party where the assault allegedly occurred, or more familiarity with the names and faces of attendees, while a complainant who was just starting out in the industry, or company, would not.

If the high-profile accused can thus provide access to twenty witnesses who deny seeing any inappropriate behavior on the night in question, and the complainant can only definitively identify one witness who did—or identifies six, and none cooperate—is it fair to assign the same weight to the substantial evidence favoring the accused, knowing that power imbalances played a role in witness availability? Cases involving disparate power and influence require somewhat unusual considerations of what is “fair” or sufficient in light of the scarcity and unreliability of aging evidence.

Conclusion

High-profile, high-stakes cases require investigators to make difficult judgment calls like those described above during all stages of the investigation. These considerations highlight the importance of selecting a seasoned investigator who has adequate training, background, and prior experience with similar claims. Investigator choice can be especially important where adverse public relations exposure is a bigger risk than legal exposure, such as where the statute of limitations on the conduct has already expired. Engaging an experienced outside investigator bolsters the argument that the investigation was conducted in good faith, and can lend more credibility to the investigation in the eyes of the parties involved, the company’s employees, and the public.

* This article was originally published in Orange County Lawyer magazine, a publication of the Orange County Bar Association. (Big Names, Big Stakes: Navigating Challenges in High-Profile Investigations, Tina Rad and Matthias H. Wagener, March 2018, Vol. 60, No. 3 at pages 40-44.)  It was also published in the AWI Journal, a publication of the Association of Workplace Investigators.  (Big Names, Big Stakes: Navigating Challenges in High-Profile Investigations, Tina Rad and Matthias H. Wagener, September 2018, Vol. 9, No. 3 at pages 13-15.)

The views expressed herein are those of the authors. They do not necessarily represent the views of Orange County Lawyer magazine, the Orange County Bar Association, The Orange County Charitable Fund, AWI, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.