Streamline Verify is proud to have had the privilege of working with the Journal of Regulatory Compliance at Loyola University Chicago School of Law to help galvanize research and resources for the publication of their upcoming Spring 2021 issue. With their permission we have outlined the main points which are expounded on in their Sixth Issue on Regulatory Compliance.
While the movement to a remote workforce has been underway as technology has increasingly facilitated off-site working, it was impossible to foresee the rapid expansion of remote workforces necessitated by the COVID-19 pandemic. Because of the pandemic, the “workplace” has changed and expanded exponentially beyond the four walls of an office or building. This article will examine how compliance investigations or internal investigations have changed as result of pandemic-related workplace changes, like a remote workforce.
I. Defining the Scope of an Internal Investigations
Remote working has crystallized the importance of defining the scope and pace of an investigation and, as appropriate, narrowly tailoring it to address the conduct at issue. Narrowing the scope is critical to reducing the challenges created by remote working which can complicate the investigatory process. Centralized workplaces have the built-in advantage as being a finite place where the individuals, documents, and data most pertinent to the investigation will be located. As workplaces are no longer defined by the traditional four walls of an office and employees spread out, these benefits no longer exist.
II. Subpoena Service Considerations in a Remote Working Environment
The challenges of appropriate service have correspondingly increased with the prevalence of remote working.
The manner and method by which the government may serve subpoenas is statutorily prescribed. If being served upon an individual, many jurisdictions require a subpoena to be hand-delivered to the individual. Service of organizations must be personally served to a corporate officer or agent authorized to accept service of process. Additionally, subpoenas for testimony generally may only compel such testimony within 100 miles of where that person resides, is employed, or regularly transacts business in person.
Due to the pandemic, an organization may have only a skeleton crew at their business location or it may be closed entirely. However, this does not alter the requirement for a subpoena to be properly served. Receipt by a receptionist and scanning it to an “authorized person” may not constitute service. Organizations should be aware of and communicate to its workforce who is authorized to accept service of a subpoena.
If a subpoena requires personal testimony, the questions arises whether the individual resides or works within 100 miles. Courts have interpreted the “100 mile” rule to protect individuals from traveling more than 100 miles to provide testimony unless they are in state and a party to the action. For purposes of “remote working,” where a person lives and works may be fluid especially during the pandemic and may result in disputes about “where” a person is employed for purposes of compelling testimony.
III. Preserving and Producing Documents
Upon receipt of a subpoena or becoming aware of a government investigation, it is imperative to preserve and collect potentially responsive and/or relevant documents (including electronic) in a timely, orderly, and comprehensive manner.
Challenges of Remote Working in Preserving and Producing Documents
With the proliferation of remote working, unique challenges have arisen which may include:
- Physical documents are no longer primarily located at a centralized location. Notes and printed documents may be relevant or responsive.
- Recovery and retrieval of cell phone data is more difficult. Text messages or call logs may be requested by a subpoena.
- Search and recovery of electronic documents and emails may be required.
- Non-employer approved computers and devices may be utilized for work purposes.
- Electronic documents may not be saved in a centralized location.
- Coordination and oversight of the document gathering process is less centralized.
Use and Production of Remote Video Conferencing and Chat Communications
Remote working has caused a wide adoption of video conferencing and other chat software to increase integration of a disparate workforce. With adoption of these software solutions comes increased compliance considerations and risks. This particularly includes the challenges of document/communication retention and production.
Referred to as “ephemeral messaging platforms,” these applications are intended to be utilized in a conversational manner with records of conversations and meetings being held only for a temporary period of time unlike emails and other electronic forms of communication. Government subpoenas and requests for production of documents ubiquitously request “all documents” or “all communications” related to a certain topic, and communications via ephemeral messaging may be responsive to such requests. Ephemeral messaging platforms raise considerable challenges and legal issues that companies may be prepared to address, including where record retention is required by regulation or statute or where document production is necessary in the context of litigation and investigations.
Per DOJ, companies must have: “Appropriate retention of business records…including implementing appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company’s ability to appropriately retain business records or communications or otherwise comply with the company’s document retention policies or legal obligations”.
Courts take a dim view of failure to maintain ephemeral messaging, especially after an obligation to preserve evidence has attached. Courts have begun applying Rule 73(e) sanctions to use of ephemeral messaging. Where companies anticipate or become aware of litigation, they should:
- issue appropriate document preservation requests;
- evaluate the ongoing use of ephemeral messaging; and
- ensure that there are no internal processes that are causing the deletion or removal of relevant documents or information.
Especially in the context of remote working, the manner and method of retrieval can be complicated by both the type of ephemeral messaging platforms utilized and the location of those devices.
IV. Employee Interview Considerations
As part of any investigation, a necessary component will be conducting employee interviews. While the basics of employee interviews remain unchanged, remote working considerations and limitations must be taken into account when undertaking these interviews.
Interviews of Remote Employees
The expansion of remote working brings an additional consideration of whether to conduct witness interviews remotely. As individuals have become more comfortable with remote video conferencing, there will be a natural inclination to conduct interviews in the same manner. In a pandemic, travel restrictions may make certain travel impossible or highly restricted and interviews must go forward. However, certain witnesses may be considered too important to interview remotely and surrender the benefit of evaluating them in person.
Where conducting an interview remotely, careful thought should be given to the risks, limitations, and special considerations associated with remote interviews:
- Recording Interviews: Many platforms permit the unilateral recording of a video conference. While recording the interview has certain benefits, such recordings may not be protected by privilege. If an interview is recorded, counsel should be aware of whether they or the witness are in one- or two-party consent states. Witness consent may be required. Witnesses should be instructed the company does not consent to recording the interview. Interviews may be recorded without your knowledge and, potentially, shared with outside parties.
- Sharing Documents: Standard practice in a face-to-face interview is to present documents to the witness but taking them back following the interview. Alternatively, many platforms allow sharing of documents in real time.
- Other Risks Areas: One uncontrollable risk of remote interviews is that of a witness being uncooperative or not forthcoming. Also, a witness may have an undisclosed person present in the room. Finally, computers can take screenshots and witnesses may thereby retain sensitive documents shown to them without permission.
Government Interviews of Employees
One of the biggest concerns is when government agents attempt to make unannounced contact with employees without the employer’s knowledge. In the remote work era, these attempts will most likely increase due to an increase in government reaching out directly via e-mail, phone, or other virtual means, or an increase in government home visits. Make employees aware early that there is no requirement that they submit to the government interview, but if they do choose to submit to the interview, then corporate counsel should be present. In situations where increased remote workforces prevent constant, in-person communication with key employees and others facing government inquiry, it is important to understand when the government is permitted to contact employees with company counsel present.
V. Internal Communications Concerning Investigations
Internal communication during an investigation is paramount, but the migration to a more remote workforce has increased both increased its importance and placed new challenges on ensuring successful and clear communication. Remote work can complicate or delay such communication.
Specifically, company boards are tasked with oversight responsibility for corporate functions, including compliance efforts, and expect to be informed of substantial internal investigations as well as government investigatory efforts. Importantly, in the Yates Memo issued in 2015, DOJ indicated its intent to hold individual board and C-suite members responsible for their roles in any corporate misconduct. Especially as the pandemic continues, there will be changes to the levels of time and focus these stakeholders can invest in compliance matters due to focus on other COVID-related and day-to-day issues. As opposed to waiting for monthly or quarterly company meetings, the best way to combat these time constraints is to consider increasing the frequency of communications in favor of brevity and making being more targeted in conveying information.
VI. Remediation, Self-Reporting and Post-Investigation Steps
If an investigation results in the need for external, government-facing remediation, then there are pandemic-driven adjustments to consider.
First, the pandemic has wreaked havoc on government institutions and have caused typical service times to balloon. Those agencies tasked with overseeing typical corporate remediation, such as the Department of Health and Human Services (“HHS”) and DOJ, are no exception. Therefore, do not expect the same level of responsiveness that you may have experienced prior.
Second, due to the pandemic, standard self-reporting requirements have changed. Section 1128J(d) of the Social Security Act outlines the self-reporting rule whereunder overpayments must be repaid within 60 days of identification or six years of receipt of the overpayment, whichever is sooner. Currently, certain overpayment debts that occurred during the pandemic will be identified and waived by the Social Security Administration rather than sought for recoupment. See 42 U.S.C. §§ 404(b) and 1383(b)(1)(B). Although not all extensions and waivers are published or publicly codified, it is recommended to request guidance from appropriate government officials on extensions of time and waivers necessary to comply with remediation measures such as self-reporting.
Many aspects of an investigation remain unchanged by the challenges of an increasingly remote workforce. However, the technology that supports the flexibility of working remotely can also create risks and delays that can substantially undermine the investigatory process. By considering those areas noted in the article, compliance and legal staff can hopefully avoid some of the major challenges that have emerged due to the increasing shift away from the office environment.