The Fundamentals of Interviewing
3.3 Evidence Collection and Management
3.3.1 Documentation
The fact finder must next document and catalog that which she intends to gather.
In some orderly and easy-to-use fashion, she must organize, tag, label, and store the evidence she collects. Concurrently, she must document her efforts, those of her team members (should she be directing the effort of others), and begin think-ing about the preparation and form of her final report. In the case of simple mat-ters, this effort is rather straightforward and almost intuitive. However, complex matters require a great deal more organization. I for one have handled matters involving tens of thousands of documents and scores of evidentiary tidbits. Absent a structured process and high degree of organization, the production of a 1,500+-page report would not be possible.
3.3.1.1 Organizing Oneself and Materials
Should the matter under investigation be sufficiently complicated, begin with a three-ring binder. In it place all notes and collateral documents. The items should be placed in the binder in the order in which they are created or developed. Preliminarily Post-it® notes can be used as temporary tabs. Later, as the investigation begins to take shape, tabbed separators can be inserted to help segregate and organize the information.
A separate evidence folder or something similar should be used to store all original documents. Only copies should go into the binder. Eventually, additional binders can be created if necessary. Document storage boxes can then be labeled and used to store the binders, evidence folders, and anything else of importance. Evidence labels,
rubber stamps, Bates Stamp (a sequential numbering device), and bar code labels can all be used to mark, identify, and further organize the materials.
Many fact finders create a diary or journal detailing their day-to-day efforts.
Thus, journal entries are made for each activity or event that occurs over the life of the investigation. Incorporating the date and time these activities and events occurred or were accomplished creates a detailed record for future reference. The journal in this sense permits one to figuratively reconstruct the investigation should it be necessary. Most experienced fact finders keep such a record.
3.3.1.2 Using Technology
Using standard office applications, such as word processors and spreadsheets, the fact finder can electronically organize his information and thoughts. The fact finder can create files, folders, and databases to create and organize task lists, records, documents, and reports. Products, such as CaseMap® and TimeMap®, can further help the fact finder organize himself and his investigation. Both of these powerful software applications are available from CaseSoft (www.casesoft.com), now owned by LexisNexis®, one of the nation’s largest and most respected providers of litigation support. Though designed for the legal profession, CaseMap can be equally use-ful to the fact finder managing large investigations. The software allows the user to organize and explore facts, the cast of characters, the issues, and all of the legal aspects of the case. It provides the fact finder the ability to electronically perform link analysis and pull together a cogent expression of his findings. TimeMap is an enhancement that allows the user to create chronology visuals. Because it plugs into CaseMap, the combination of the two makes a powerful investigative tool capable of handling the most complicated of cases. Both of these products are now hosted applications on a Microsoft® SQL Server® platform for centralized and secure remote access to one’s data and case files, enabling speedy access to every authorized user within the wide area network.
My firm, Convercent, Inc., also offers a cloud-based case management solution.
Over 35,000 customer locations in 150 countries currently use it. You can learn more about it by going to Convercent.com. Figure 3.3 is a screen shot from our case management portal.
Solutions like that of Convercent should at a minimum provide users with:
◾ web-based access allowing real-time access from anywhere, anytime
◾ alerts providing notification of overdue tasks and progress updates
◾ centralized capture of all case details in a secured central repository
◾ robust task management features
◾ dashboards that provide real-time information regarding trends, perfor-mance, and all relevant investigative activities
◾ ad-hoc reporting capabilities enabling customized professional looking reports
Another less sophisticated, but useful tool is a product called The Case File. The Case File is a collection of fact finder tools including investigative forms, checklists, and report templates. The product includes an actual sample case file and a CD on which are all of the forms, checklists, and templates in MS Word® and Rich Text Format (.rtf). The documents are professionally formatted and neatly organized.
Because they are electronic, they can be easily manipulated and customized. The user license allows unlimited use and duplication of the documents. Both nov-ice and experienced investigators will find The Case File an invaluable tool. It is Figure 3.3 Convercent case management portal.
available from InfoQuest Investigators at www.thecasefile.com. Figure 3.4 sum-marizes some of the contents of my version of The Case File.
It is easy to see that The Case File contains many useful items. The real value, however, is that, if used properly, it is able to provide enterprise-wide case file and project management standardization. The standardization facilitates easier file review, easy case file sharing or reassignment, and, when used in its electronic form, it permits electronic entry of data and notes.
Because large or complex projects tend to generate a large number of docu-ments, naming one’s electronic files also deserves some consideration. The system used may vary depending upon the type of documents being named.
For example, the Correspondence folder might contain letters, memorandums, and faxes. Hypothetically, the documents in a multifile folder might be named as follows:
Fredrickson, Robert Letter 01.doc Fredrickson, Robert Letter 02.doc Fredrickson, Robert Letter 03.doc Fredrickson, Robert fax 01.doc Fredrickson, Robert memo 01.doc Fredrickson, Robert memo 02.doc Gross, David Letter 01.doc Gross, David fax 01.doc Gross, David memo 01.doc Gross, David memo 02.doc
This method uses the recipient’s name (last name first) as the primary identifier, followed by the type of document, followed by a number representing the sequen-tial order in which the documents were created.
Tip: Impose organization and structure on your electronic file folder and file sys-tem before you begin your fact finding. Structure your document management process such that it allows your work product to be easily filed and retrieved.
Exercising discipline during the early phases of the project can save time and frustration later.
The necessity of a physical (paper) case file is a matter of opinion. I happen to prefer its use. Others seem to think it is not only unnecessary, but wasteful as well.
Because so many of my firm’s cases involve matters in litigation or those likely to be involved in litigation, discovery issues are a consideration. An organized case file with all of its contents neatly tabbed and organized under colored covers has eye appeal. It also suggests professionalism and a high degree of sophistication. These
Section/Forms Notes and Instructions
“Case/Subject”
Contract of Retainer
This is included since this same file is used as a complete package by private investigators. You may modify this to be a contract you use for outside investigators, or just remove it from your folder.
Subject Data File Table of Contents
Shows category and line number of the main “Subject Data File” and allows you to show which areas of information are provided, needed, and completed.
Subject Data File A 35-page fill-in-the-blank dossier on the subject of your investigation.
Addendum Sheet The “Subject Data File” is line numbered. Use the addendum for overflow information or for annotation.
Table of Contents Shows layout and organization of the Investigative File.
“Theory”
This section is grouped in the first section with your subject and case. As you start the case with what you already know, you use the “Theory” section to list what you need to know.
The To-Do List General list to list necessary activity. Check its completion, and delegate.
Case Activity Gameplan I
A comprehensive checklist of sources to be used in gathering info.
Case Activity Gameplan II
A “to do” list organized by activity rather than source.
Quick-Scan Contact Log
Make a list of people you will talk with on a regular basis or use to match people, phone numbers, e-mail etc. with each other.
Other Contacts – Client
People associated with your client that the investigator may or should contact.
Other Contacts – Subject
People associated with the subject that are friendly to the investigation. OR, people such as the subject’s attorney.
Time Line Use to develop time relationships of factors leading up to an incident, or comparisons of witness testimonies, etc.
Figure 3.4 Case file contents.
impressions are useful to my clients if our files are ever produced in discovery. Your situation might be quite different and, as such, you might decide physical files are entirely unnecessary.
Although all of these aspects of management systems need to be contemplated and decided, case file retention deserves special attention. How long one should retain case files is debatable. Federal law regulates record retention in a variety of areas. For example, aspects of the Occupational Safety & Health Act (OSHA) require some records to be kept the length of the employee’s tenure plus 30 years, and records pertaining to the Employee Polygraph Protection Act, such as why a test was administered and its corresponding results, must be retained only three years. Statutory record keeping under Title VII of the Civil Rights Act of 1964 is less straightforward. The Equal Employment and Opportunities Commission (EEOC), which is responsible for enforcement of Title VII does not require that any record be created, but once created, rules require the record be retained for one year from the date personnel action was taken. In the event a formal charge or lawsuit is filed, all relevant records must be kept until “final disposition.” The con-fusing and often conflicting array of state and federal requirements makes record retention policies complicated and burdensome. Compliance and enforcement of such policies is even more burdensome. As such, many employers keep everything forever. I, for one, think something a little more reasonable is in order.
A nonscientific survey of licensed investigators that specialize in workplace investigations that I recently conducted revealed that most intend to retain their files for somewhere between seven years and indefinitely. Those that stated that they periodically purge their files said they do so only when they thought of it. Only a few of the professional investigators I surveyed said they have systematic record destruction procedures. Fewer still could explain what those procedures were.
My suggestion is to retain case files not less than seven years. Absent a clearly defined policy, in most instances, after seven years, case files tend to be misplaced, lost, or accidentally disposed of in the normal course of business. When someone leaves or changes position, it is very rare they are asked to surrender investiga-tive case files and materials pertaining to past investigations. Usually the stuff just gets misplaced or thrown away. Establishing a policy requiring indefinite retention creates an unnecessary administrative burden and potential liability for the orga-nization. With such policies in place, the organization that cannot produce a file when needed can be accused of a cover-up or worse. Conversely, the systematic destruction of files also can raise questions. However, a reasonable policy that is consistently applied is tough to attack and usually can be defended.
Tip: Case file retention practices deserve thorough consideration before implemen-tation. Retention of case files for seven years from the date of closure is considered the minimum.