When should you record your remote interview during the pandemic? In the U.S., many lawyers say never.
During the pandemic, you can no longer interview witnesses in a controlled environment where you’re in the same room. This leaves many people settling for video conferencing. Choose a service with a reputation for strong security and performance, because the last thing you want is for your video interview to be leaked, or your call to end at a critical moment due to a technical issue.
Once you’ve locked down which service to use, and you’ve familiarized yourself with the service’s features, you’re going to have to answer an important question: Should you record the interview?
Recordings might be discoverable
Video interviews in the United States should generally not be recorded, according to a March 2020 article published by Jones Day. The firm’s partners said witness interview notes usually qualify as a protected work product while recordings may be discoverable in future litigation.
Partners from Hogan Lovells agreed.
“It may be tempting to create an audio recording of the interview, particularly in one-party consent jurisdictions; however, this creates a greater risk that the recording will become discoverable,” according to an April 2020 article in Bloomberg Law.
Another concern is that the witness on the other end is recording the call. So, you must clearly state that you do not give consent for a recording.
“If there is concern that a witness might record the interview on their end, the interviewer should address the issue upfront, making clear that the witness is not permitted to record the interview and the company does not provide consent to a recording,” Hogan Lovells partners wrote.
If you’re undeterred by these warnings and you still want to record your investigative interviews, here’s what you need to move forward.
Take precautions if you decide to record
Even with the information above, it does not mean, across the board, that recording an interview is out of the question. It does, however, demand that you and your investigative team run a tight ship in preparation for any recorded interview. You’ll need to make absolutely certain that the following takes place before you even think about hitting the record button on Zoom or any other service:
Conform with state and local laws
In a standard investigation where both the investigator and the witness are in the same regional area, most likely the law is pretty straightforward on what needs to be done to keep the interview compliant. California, for instance, is a two-party consent state. This means that both parties must give permission to make a recording. When the employee is in another state, it can become much more complicated. Make certain that you know where the interviewee is and what the laws are before you decide to record the interview.
Understand that the witness may record the interview surreptitiously
When interviews are conducted in one room, it’s easy to spot when you are being recorded on a cell phone, etc. However, in video interviews, you can’t see the entire room. So you may not know if the witness is making their own recording, to be used for future lawsuits, or even just to dump on the internet to hurt your company reputation. If the information shared in the interview is confidential, and it almost always is, this is an important consideration.
Make sure both sides are technologically prepared for the interview
According to an April 2020 article by DLA Piper attorneys, it’s important that the witness knows in advance that the interview is going to be conducted by video conference. But beyond that, DLA Piper’s attorneys recommend testing out the software with the witness before any interview, just to be certain that everyone understands the basics of how everything works and can access any software or hardware needed during the interview. A fast internet connection is also important, and by doing a test with the witness beforehand, you can most likely determine if internet speeds are going to be fast enough to support an important video call.
Establish that the witness has a private area to take the video call
Most office buildings feature areas that can be set up for private calls, from small conference rooms to empty offices to storage rooms. When the witness works from home, and they have children, roommates, or a partner that shares that space, it’s not always easy for the witness to find a private place for a call. According to DLA Piper, this private space is essential.
“At the outset of the interview, interviewers should confirm that all participants are in a location that is private. During the interview, periodically ask the witness for confirmation that no one else has entered the room.”
Work out how to share information during the video conference
In investigative interviews where everyone is physically present, documents are routinely passed back and forth based on who needs to see the documents. In a video call, this can become very complicated. What if you have a document that only the witness should see, but there are other people on the video call? Another challenge? The witness is on the call, but their counsel is not. How do you manage to share confidential documents in a seamless, professional and legally sound manner? In an April 2020 article, Manatt Phelps said:
“Remote video interviews where counsel does not have in-person representation introduces other challenges: exhibits, documents, and the witness’s own counsel. While under normal circumstances, the witness and their own counsel will be in the same location for a video interview, with everyone self-isolating that may not be possible. A protocol, therefore, has to be set up to allow the witness to confer with counsel during the course of the interview without company counsel ‘present.’”