Handling Witness Tampering & Retaliation During Investigations & Litigation

One of the key roles I play as a litigator, advocate & leader is handling witness tampering & threats against witnesses & parties involved in investigations. Here’s a general rundown of how I handle these concerns. Note that this is general advice & not intended as a be-all end-all solution. In other words, “don’t try this at home” without having the proper preparation & support.

First some context. Half of the the investigations or litigation that’s involved concern in-house investigations conducted by the business’ owners, operators, HR people & the business’ own attorneys, sometimes me. The other half concern investigations by & litigation with regulatory agencies like the Equal Employment Opportunity Commission, the U.S. Department of Labor, the National Labor Relations Board, & their state or local equivalents. The litigation also includes opposing counsel, & representatives from labor union & worker associations.

The key concern that arises is that my client & their employees, sometimes even their other attorneys, have to deal with obnoxious, obtuse, creepy & rude co-workers, supervisors, investigators, representatives & attorneys. For your reference, I write about this from another perspective in “The Creep & Jerk Factors in the Workplace,” on this blog here.

Such coercion & threats may include threats of demotion, reduction in pay or benefits, subpoenas, legal action against that individual, blacklisting (I’ve seen threats of blacklisting occur when labor unions, labor associations or employers are to get an employee to comply with a demand to either not testify, testify or otherwise participate in an investigation or dispute).

Usually, it comes down to me, as my client’s representative, to talk to employees about how to raise these concerns to their employer, or even to me, & how we go about protecting that employees from further reprisal. In some circumstances, I’ll have to raise the issue directly with the opposition. In even more extreme & rare circumstances, I’ll have to discuss with the employee, their associates or employer how to obtain the assistance of law enforcement, like the police or sheriff, or  obtain some sort of judicial restraining order or emergency order of protection. In any instance, maturity, effective leadership & an understanding of the legal or regulatory system is key.

Here’s some basic text I’ve used with some clients. However, a one-size fits all approach isn’t advised. It’s impossible to predict or plan for every possibility (at least I think so). So this is just general guidance. I use very generic terms in the place of either a regulatory agency; e.g., bar association, labor department, or in-house complaint, charge or even lawsuit.

As we discussed, it’s possible, but not probable, that Jane Doe, her attorneys or the regulatory agency will contact witnesses. We must take threats & tampering extremely seriously because that may exacerbate or escalate an already contentious or difficult situation. In any instance, effective leadership & communication is crucial.

Here’s a guide for how to deal with such contact & how to discuss them with concerned employees:

• • • I’m a firm believer in transparency. On the other hand, I recognize that everyone is different & processes information in their own unique way. Consequently, even though we should be transparent, we have to balance that with discretion, & the fact that some people might freak out. Generally, it’s a good idea to prevent someone from freaking out.
    • I’m available to discuss this with you or anyone else anytime.
    • Contact our witnesses & discuss with them that Doe filed a complaint, charge or lawsuit. Explain the complaint or lawsuit it general terms.
    • Contact each witness individually; not as a group.
    • Let the witness know that we responded to Doe’s charge. In that response, we identified them as witnesses or provided their written statement to the agency/opposing counsel. Explain why we identified them as a witness or need their written statement.
    • The reason we need their statement should be obvious–it’s probably credible 1st-person evidence.

Another key point is when to have these discussions. When to say something is often as important as what to say. Do you discuss issues before a complaint or lawsuit is filed or after? There’s no simple answer. How & when to communicate or respond depends on the specific context of the dispute. Some points to consider are:

• • • If you don’t reach out to the employee, will that employee, or anyone associated with them, be in imminent danger?
    • What sort of imminent danger can be expected–physical, psychological, both?
    • If the employee or witness isn’t in imminent danger, then what other kinds of threats or issues can be anticipated (e.g., rude or obnoxious behavior, a subpoena, a simple request for assistance or involvement)?

In a future post, I’ll discuss whether or not to give concerned employees or witnesses a sort of written witness “bill of rights” & an example of this type of document.