Canadian Lawyer InHouse

NOVEMBER/DECEMBER 2015 22 INHOUSE operations of a large United States-based company. In this scenario, it may be U.S. investigators leading the probe rather than a Canadian fi rm. Donald Dowling, a partner with K&L Gates LLP in New York, says it really depends on the nature of the allegation. "Canada and the U.S. are pretty much on the same page on this" when it involves a need for cross-border inves- tigations, says Dowling, who specializes in in- ternational employ- ment law issues. If the allegation is one that "is confi ned to the local offi ce," then the U.S. fi rm will likely leave it to be dealt with by its Canadian sub- sidiary. However, "if the allegations, if true, will rattle the cage of headquarters, then there may be a reason to do it the American way," says Dowling. At the same time, he cautions U.S. companies to be mindful of coming across as too aggressive in a paper he published earlier this year about cross-border workplace investigations. The "American way" may also impact a Canadian-led cross-border investigation as a result of the sweeping powers of entities such as the U.S. Securities and Exchange Commission. Any investigation "should be done at the standard of the most rigorous regulator" that could have jurisdiction over a company, says Devereux. In most cases, that is the U.S., although he adds that regulators in Canada also have broad powers. Along with ensuring that the focus of an investigation is defi ned at the outset and that it is conducted in a thorough and fair fashion, a company must also decide what information to disclose and the level of co-operation with regulators and, in some cases, law enforcement. To be in a better position to make that decision, it is crucial that a company has fi rst want someone completely independent when you are looking for a fact fi nder," he states. An example of this type of investigation he says is the one conducted by Toronto lawyer Janice Rubin for the CBC in the wake of the sexual harassment allegations against former radio show host Jian Ghomeshi. "A lot of the time though, larger internal investigations are not about a single discrete issue. It may require a lot of specifi c subject matter expertise and knowledge about the company," says Devereux. "You are con- ducting an investigation so you can provide legal advice at the end of it," he explains. While the specifi c fact scenario of any al- legation will drive this decision, "if there is any doubt, err on the side of not using regu- lar counsel," suggests Cobb, so the investi- gation is considered objective. One example where an internal investi- gation came under public criticism was the multi-million-dollar probe in "Defl ategate." The National Football League retained a Washington law fi rm to probe allegations that star quarterback Tom Brady asked low- level staff on the New England Patriots to tamper with the infl ation level of the foot- balls. A 243-page report, issued after a four- month investigation, found it "more prob- able than not" that the team was involved in tampering and Brady was "generally aware" of these actions. However, the lead inves- tigator, lawyer Ted Wells, faced criticism because his high-profi le law fi rm had done previous work for the NFL, including de- fending it in litigation stemming from the impact of concussions on former players. For cross-border investigations, in addi- tion to ensuring that the probe is seen to be independent and objective, there are a number of other complexities involved in the task. "You have to know the law in all of the ju- risdictions. You will likely need local help," says Cobb. For example, "different jurisdic- tions will have different rules in terms of what you can access and what you can do with employee information," he adds. The rules and conventions about privi- lege may also be different than in this coun- try, notes Devereux. "In-house privilege is generally recognized in Canada, although not necessarily elsewhere," he says. In some European countries, the privilege is stron- ger for external counsel than for in-house lawyers. Depending on the importance of a witness interview, Devereux suggests it is normally conducted by a local lawyer and someone based in the main jurisdiction of the company. Once all of the relevant documents are accessed, the next important step in a cross-border investigation is the witness interviews, says Matheson. "The object of these interviews is not a cross [-examina- tion]. You are not trying to trap anyone. A "gotcha" style of interview is short-sighted. The answers you will get tend to be unre- liable and the fi ndings you make may not hold up," he suggests. All of the lawyers agree that interviews in other countries require the investigators to be aware of cultural sensitivities so as not to offend a witness. "Canadians are well placed to do that work. We have a good international reputa- tion and are not seen as aggressive" as law- yers in some countries, says Matheson. As well, the phrasing of the questions may assist in obtaining more complete wit- ness responses, without causing any offence, says Robidoux. "You can't ask questions the same way you would in Calgary. If you ask anyone if they pay bribes, they are going to say no. But if you ask about speeding up the bureaucracy, you may receive a more com- plete answer," she says. Another form of cross-border investiga- tion for in-house counsel to consider is if the alleged wrongdoing is within the Canadian investigators leading the probe rather than Donald Dowling, a partner with K&L Gates LLP in New York, says it really depends on the nature of the allegation. "Canada and the U.S. are pretty much on the same page on this" when it involves a need for cross-border inves- If the allegation is one that "is confi ned to the local offi ce," then the U.S. fi rm will likely leave it to be dealt with by its Canadian sub- sidiary. However, "if the allegations, if true, will rattle the cage of headquarters, then there may be a reason to do it the American way," says Dowling. At the same time, he cautions U.S. companies to be mindful of coming across as too aggressive in a paper he

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