Before the First Interview: Scope, the Evidence That Deletes Itself While You Deliberate, and Interim Measures While the Investigation is Pending

Scope: broad enough to be honest, narrow enough to finish

An early writing defining the scope is one of the easiest and most effective first steps when conducting an investigation. Define what is being investigated, including which allegations, which time period, and which actors. Scope discipline serves dual purposes. Too narrow, and the file shows an employer that arranged not to find things; the question you declined to ask reads, in hindsight, as the question you feared the answer to. Too broad, and the investigation never closes, promptness collapses, and an inquiry that began about one manager’s conduct becomes a referendum on the department. The working rule is to investigate the allegations made, plus what the evidence encountered along the way fairly and reasonably demands. When the evidence demands expansion, expand the scope memo in writing rather than silently drifting.

Preservation: the hold you send at the earliest opportunity

Send the litigation hold early because the alternative may be unrecoverable. All too often litigation becomes more about what was preserved and when, as opposed to the facts that got the parties there in the first place. In most cases, the modern evidence problem is not an email archive, it is everything else. It is Slack and Teams channels with varied retention policies. Text messages on personal phones under BYOD policies. Chat and project history with generative AI tools that may or may not be approved for business use. Video systems that overwrite in 14 days and ephemeral messaging apps whose entire design premise is that the evidence disappears. Map, in the early days, where relevant communications happened. Ask the complainant and witnesses directly where the communications and evidence live, so you can take steps to preserve them. A tailored hold to a handful of custodians, promptly issued, beats an elegant comprehensive hold issued three weeks later. Also instruct the participants, in writing, not to delete anything themselves. Well-meaning cleanup by a nervous accused has converted more than one defensible case into a spoliation problem.

Interim measures without prejudgment

Something usually must happen before findings, including separating the parties, suspending access, and/or adjusting reporting lines. Two principles keep interim measures from becoming the plaintiff’s Exhibit B in a subsequent retaliation case. First, the burdens need to fall on the accused, the schedule, or the business and not on the complainant. Transferring the complainant “for her own protection” to the less desirable shift is an adverse action waiting to happen. When separation is needed, paid administrative leave or temporary reassignment for the accused is the conventional, defensible instrument; it is explicitly non-disciplinary, and should be described that way in writing. Second, interim means interim. Date-stamp the measure, tie it to the investigation’s duration, and revisit it if the investigation extends. An open-ended “temporary” suspension that outlives its justifications starts accruing damages of its own. Finally, say less than you want to. The accused is told an investigation is underway and cooperation is expected; witnesses are told only what their interview requires; and any confidentiality instruction should be tailored to the investigation’s integrity. This is a subject with risks under the National Labor Relations Act that we will discuss in the next installment.

What can employers do when the complaint comes in?

1. Build a first-days checklist, including a scope memo, custodian map, litigation hold, retention-suspension requests to IT, and an interim-measures decision.
2. Audit your retention settings now and know what your chat platforms, phones, and cameras delete and on what cycle. Know what your hold process will be and how to execute on it.
3. Write interim-measure defaults into your protocol. Draft paid non-disciplinary leave language and separation options that do not burden the complainant. This allows for intentional decision-making rather than improvising.
4. Calendar the investigation at the outset and include target dates for interviews, findings, and closure. The schedule will move; having one is what proves promptness was managed rather than accidental.

Next installment: strategies for interviewing the complainant(s) and witnesses. Understand the confidentiality instruction you can give, and the notes that will speak for you in a deposition four years from now.  To read the previous installment, click here.