What impact can a client’s review and editing of a workplace investigator’s final report have on the neutrality of the investigation? As a recent federal judge observed, a lot, especially when the aggrieved employee is denied the opportunity to discover the extent of the review.
You might have heard of a little controversy in the National Football League called “Deflate-gate.” Allegedly, the New England Patriots violated league rules by tampering with footballs during the AFC Championship Game against the Indianapolis Colts on January 18, 2015. The NFL concluded Patriots staff improperly deflated game balls, making them easier to throw and catch.
To get to the bottom of the controversy, the NFL did what any wise organization would do when faced with a high stakes, public scandal—they hired an outside investigator to conduct an “independent investigation.” The NFL hired Theodore V. Wells, Jr. and his law firm to conduct the investigation, which reportedly cost more than $3 million (note to self—our rates are way too low).
Mr. Wells conducted an extensive investigation and the findings were released to the public. The investigation included reviews of a variety of evidence and 66 witness interviews. Mr. Wells ultimately concluded the Patriots violated league rules and that the Patriots’ star quarterback, Tom Brady, was generally aware that Patriots staff deflated game balls.
The NFL imposed a four game suspension on Tom Brady because of his alleged role in the tampering. Mr. Brady, through the NFL Player’s Association, appealed the decision and arbitrated the dispute under the NFL’s Collective Bargaining Agreement. Following several motions and appeals, the NFL ultimately upheld the suspension.
The matter then came before a federal district court for review and things got interesting. The judge vacated Tom Brady’s suspension noting, in part, that the arbitrator, who happened to be Roger Goodell, the NFL Commissioner, denied Brady the opportunity to examine one of two lead investigators and denied him equal access to investigative files, including witness interview notes.
The NFL publicly identified its general counsel, Jeff Pash, as the “co-lead investigator” along with Mr. Wells. Yet, the arbitrator denied Mr. Brady’s counsel the opportunity to interview Mr. Pash, even though he reviewed and edited the report prior to its public release. The court noted, “As co-lead investigator…Mr. Pash was in the best position to testify about the NFL’s degree of involvement in, and potential shaping of, a heralded ‘independent’ Investigation.” The judge questioned how the NFL’s general counsel came to “edit a supposedly independent investigation report.” The judge also found that the status of Mr. Wells’ firm seemed to switch from “independent” investigator to the NFL’s “retained counsel,” which resulted in the NFL refusing to produce witness interview notes to Brady during the arbitration process. You can read the judge’s decision here; pay special attention to pages 32-38: http://www.gannett-cdn.com/experiments/usatoday/Sports/2015-09-03-nfl-brady-decision.pdf.
Are there lessons here for investigators, legal counsel and clients? Plenty. There is always more to the story, of course, and every investigator knows that the perception of their investigation process as seen through the prism of litigation is often distorted. No investigator, or client, however, wants to have the independence or neutrality of an investigation challenged. Key takeaways from this case include:
- Most attorney investigations are conducted under attorney-client privilege, with the understanding that the privilege might be waived in future litigation. Clients and investigators should assume that discussions about strategy, scope and substance, will be scrutinized if that privilege is waived. Even the verbal conversations and emails between the investigator and the client’s in-house counsel will be subject to discovery.
- It is common practice to share a draft of an investigation report with the client, but, again, all involved should assume that any changes or edits made by the client will be scrutinized by the judge and the jury. Moreover, extensive input will jeopardize the impartial appearance of the investigation.
- Attorney investigators should maintain an arm’s length distance from the client’s internal discussions and limit their advice to issues directly related to the investigation itself. In this way, the investigator can avoid claims that he or she switched roles from investigator to advocate.