Confidentiality in Interviews: What You Can Promise and What You Can't
“Three may keep a secret,” wrote Benjamin Franklin, “if two of them are dead.” While attorney-client privilege confers a lot of power on lawyers and their agents to keep a secret, the privilege is never absolute. It can be waived by the client anytime, and can be breached in all sorts of ways.

That’s why it’s unwise to promise an interview subject that what he tells us will forever remain confidential, no matter what.
As investigators, we are sometimes asked by people we interview whether what they tell us can be kept “secret,” “just between us,” “confidential” or “off-the-record.” Those terms and other similar ones may have specific legal meanings under the rules of evidence, but can also mean different things to different people.
Good reporters always go over the ground rules of an interview if a subject seeks to put a limitation on what may be reported or disclosed to third parties.
Good investigators ought to do the same if asked. We’ve written before about the importance of using templates – a script of how an investigator will represent himself and the degree to which he will identify his client, in Trial Ethics: A Template Can Save Your Life.
In every one of our templates is a response to the question from the person we are seeking to interview, (if asked): “Can my comments remain confidential?”
Our answer tends to be something like, “Our firm has to share anything I hear from you with our client, but we won’t tell anyone else that you’ve told us anything unless a court orders us to do that.” This makes the investigator’s promise truthful, but doesn’t promise that what the person making the comments says will forever stay between that person and the investigator.
If we are hired by an attorney, then we will assert that anything we report to that attorney is protected by attorney-client privilege. As agents of the attorney, for the purposes of privilege it’s as if the attorney is doing the interviews we do.
But what happens if word gets out that we have done an interview, and the other side in litigation seeks a court order demanding that we hand over our notes or divulge the contents of our conversation? Our letter of engagement with attorneys promises that
we will promptly notify you [our client] and follow your direction with respect to any third-party effort, by subpoena or otherwise, to gain access to any document or information pertaining to this matter, including any effort to obtain testimony from us.
In other words, we’ll get our clients the information we learn in an interview, because our first duty is to our clients. And, we’ll fight as hard as our client would to preserve that secret. Beyond that, what happens to the information we report can be taken out of our control.
What works best for everyone concerned is that everything we promise is written down in an interview template and a letter of engagement. It helps our clients sleep better, and when they are happier, so are we.

Fewer in number are the people who can help sort through the experts’ backgrounds – people who can help prevent an unanticipated attack on the credibility of the expert witness.
One of the biggest misconceptions about due diligence is that it is a one-way street. People assume that either they are scrutinized or doing the scrutinizing, but never the twain shall meet. But this shouldn’t always be the case. In some instances, the person under the microscope also has a responsibility to make sure that they subject the other party to thorough due diligence.
In September 2011, Gauss, a new malware
Investigators are often asked to track people down—for instance, we are sometimes asked to find former employees of a company who might be witnesses in litigation. In some cases, we don’t know who we’re looking for exactly, but we know where they worked, or we have an old address. These assignments can be time-consuming, but clients are often sympathetic because they realize the challenges involved in tracking down a person whose name remains unknown.
Attorneys have a professional obligation to protect client confidences and communications, but technology has made this increasingly difficult. As a recent article in the Wall Street Journal, “

Clients are often surprised to learn how much corporate information is on the public record. Of course, public companies are forced to disclose a lot more data than private ones, but it's still possible to learn about private companies using smart and thorough public records searches. 
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We have had a number of recent cases involving foreign companies who entered into large-scale sale agreements with American-based corporations. These companies are run by sophisticated, experienced executives. In most instances, the agreements were for millions of dollars’ worth of merchandise.
Recently we were hired to track down a man who defaulted on a million dollar judgment against him by our clients. The man's family owned and operated a successful retail business. Since the judgment against him, the man had declared bankruptcy. He alleged that he no longer had income from or access to his family's vast business fortune.
We wrote in our pieces "
Adam Davidson recently wrote "
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Context matters. We know this instinctively, and yet somehow we forget. We still tend to assume that facts live in their own separate bubbles. So when we research and analyze, we warily keep our findings in separate categories—information on person A separate from information on person B, which are both separate from facts uncovered about company C. We go to great lengths to avoid any cross-contamination because that may be messy or unwieldy and keeping things tidy is so satisfying. 
We have written extensively about the importance of good interview skills, in our blog entries "
If you’ve ever had to hire people, you know what a tough job that is. You know that you are making a decision that will have a profound impact on a number of people—not only on yourself and whoever you choose, but also on everyone in your company or organization that will have to collaborate with that individual. It can be a daunting experience. And while it’s a great feeling when you find someone who turns out to be a good fit and a real asset to your organization, it feels just awful to realize that you’ve hired someone who is a big disappointment. And a bad fit can be bad for business, because someone who doesn’t mesh with your corporate culture can keep your company from moving forward.

You have an opening in your company. You get a slew of resumes for the position, you interview a number of candidates, and then you finally narrow it down to two people: One has experience that’s right on the mark, but during the interview you had glimpses of an attitude that might not mesh with your corporate culture. The other person is lacking a number of important skills, but it seems that she makes up for her shortcomings with an energy and attitude you admire. She seems like a real go-getter who will be a good fit among your staff. So what do you do?














