In a BLR webinar entitled "Complaint Investigations: The Legal Dos and Don'ts of Finding the Truth Without Breaking the Law," Matthew H. Haverstick, Esq., partner in the nationwide law firm Conrad O'Brien P.C., emphasized the importance of notes and recordings when conducting an investigation of an employee complaint.

In many cases, you will want to have a documentary record of each interview. These can take several forms, including stenographic notes, informal notes taken as the suspect speaks, notes recorded afterwards, or a tape recording. Each method has its own merits and drawbacks, so you should consider the end use of the record before deciding which one to employ. (Also, remember that your notes could come out later in a lawsuit!)

Stenographic notes. A stenographic record has the advantage of being thorough and accurate, and it should not be distracting to the interviewer. However, the presence of a stenographer could be counterproductive if it puts the suspect on his guard Stenographic notes should be transcribed and reviewed immediately after the interview.

Contemporaneous notes. Contemporaneous notes have the advantage of being easy and economical. Every interviewer will want to make some notes, but if they are to be the sole record of the proceeding, they have two primary disadvantages: (1) They are distracting, both to the interviewer and interviewee, often giving the suspect the opportunity to deflect attention away from the matter at hand. (2) They rarely can provide a full and accurate record.

Notes formalized after the interview. Notes compiled afterward are not distracting, and they can be especially effective when two or more interviewers are involved. If they sit down immediately after the meeting and draft and sign a joint report, they will probably be able to get a full and accurate record.

Matthew H. Haverstick, Esq., is a partner in the nationwide law firm Conrad O'Brien P.C. Mr. Haverstick focuses his practice on internal corporate investigations, white-collar criminal defense, complex business torts, securities arbitrations, Racketeer Influenced and Corrupt Organizations (RICO) claims and construction defect cases. He may be contacted at mhaverstick@conradobrien.com