By Judith A. Rosenberg

This article first appeared in the California Association of Workplace Investigators (CAOWI) Quarterly, Volume 1, Number 3, July 2010.

A hot topic of conversation among those who conduct investigations is what type of reports should be provided to a client at the end of an investigation. Should investigators provide written reports in all cases? Is it proper to meet with the client to deliver an oral report before completing the written report? What if the client requests only an oral report? Should an investigator prepare an "internal" summary or executive summary if the client does not want a written report so there is a document prepared close in time to the investigation? At a recent CAOWI meeting, the differences in opinions and rationales for providing written or oral reports provided interesting insight into the minds and practices of CAOWI members.

In most cases, investigators provide written reports to the client. Information that is commonly included in a report includes:

Investigators frequently meet with the employer and/or attorney before preparing the final written report. Sometimes these meetings are informal updates on the information the investigator has developed as the interviews proceed, while other times the investigator presents an oral report prior to completing a written report. Discussion of the facts and conclusions with the employer may allow the investigator to focus more clearly on issues where the employer wants specific information or to ensure that information in the report is sufficient to allow analysis of the complaint. It is important for the investigator to have documented conclusions or opinions before the meeting, and it is essential to take all necessary steps to ensure there is no appearance that the employer or attorney influenced the final conclusions.

A request for an oral rather than a written report may have ramifications for the employer and the investigator. Without a written report, the investigator cannot be certain that the client has correctly heard and understood the information presented. Situations where the employer has "selective hearing" or "selective memory" of the meeting result in problems if the complaint leads to litigation and the investigator is deposed or testifies. One defense attorney to whom I spoke said he always cautions the client that there are dangers in failing to get a written report from the investigator. The plaintiff's attorney or a jury may believe this was done because the employer did not want to fully investigate the complaint, because the acts were so bad that the employer did not want to have them documented, or because the employer was trying to suppress information. If the employer's executives say that they do not want a written report, it is probably good practice to suggest they talk with their attorney before making a final decision. If the client does not want a written report, the investigator should strongly consider preparing a summary or executive summary for the file, even if the client cannot be billed for the work. If the investigator does not prepare any report or summary at the conclusion of the investigation, it may be more difficult to recall specific details or conclusions if the investigator is later asked to testify. It enhances the investigator's credibility if a report is prepared close to the time of the investigation as there may be fewer questions about memory, meaning of notes, or the scope of work. Since the information will have been organized for the oral report at the meeting with the employer or attorney, preparation of a summary should not be time-consuming. Any summary will most likely be subject to a subpoena if there later is litigation. Some insurance policies require an investigator to prepare a written report. When this is the case, the retention agreement should make clear that the investigator will provide (and bill for) a written report. It would be prudent to determine what type of written report will satisfy the insurance requirements. Some investigators include a requirement for a written report in their retainer agreement as a condition of doing the investigation.

The key to a good report, oral or written, is clear documentation and analysis, along with a detailed description of the work performed and the investigator's conclusions. A report with those components is useful to the client and provides ample information for an investigator to rely upon when testifying.