To Record or Not to Record? That is the Question
Amongst workplace investigators, few topics are more heavily debated than whether it is best practice to record witness interviews. Even the Association of Workplace Investigators (AWI) acknowledges the debate. At AWI conferences, for instance, leadership often jokingly responds to participants’ questions about the topic by saying, “Let’s take up the topic at happy hour tonight!”
AWI’s “Guiding Principles” give investigators the option of documenting interviews through, “Note-taking, recording, or some other method.”[1] Likewise, the U.S. Equal Employment Opportunity Commission (EEOC) advises that interviews can be documented through, “Handwritten notes or verbatim transcription.”[2]
Inevitably, as a workplace investigator, you will be asked by a client for your opinion on whether it is best to record interviews or not. The answer — “it depends.” There is no right answer — there are only pros and cons to consider. This blog post helps flesh out those pros and cons, and provides investigators with the tools to decide when, and when not, to hit the record button.
What are the potential benefits to recording?
Creates a reliable record. Recording creates a precise record of what was said during the interview. It does away with shorthand, abbreviations, and summations that typically find their way into notes. Recording is especially useful when interviewing witnesses who speak too fast, bounce between topics, or who are otherwise difficult to follow. Plus, audio recordings help capture the way an investigator asks questions and the way a witness answers them, including tone of voice, volume, and emotion.
Increases the investigator’s focus. It is no small task conducting investigative interviews while simultaneously taking quality notes. Recording enables the investigator to focus on the interview rather than the notetaking process. Recording can mean more attention and focus is given to the witness’ answers, follow-up questions, and staying present in the moment.
Limits attacks against the investigator. It is advisable to utilize a reliable and efficient transcription service. With a transcript, investigators can insert direct quotations from witnesses into the final investigative report. This reduces the likelihood a witness will dispute what was discussed in the interview or accuse the investigator of misrepresenting their responses. This consideration warrants special attention if the client believes one of the parties plans to file suit. In those instances, it is typically advisable to record.
Required by law or policy. Investigators need to be aware of statutes that may require recording in some instances, such as investigative interviews that could lead to punitive action for sworn Public Safety Officers and Firefighters in California.[3] Also, it is not uncommon for public sector employers to have a policy, practice or expectation that investigative interviews be recorded.
What are the potential downsides to recording?
Fosters an overly formal environment. Knowing the interview will be recorded can increase a witness’ anxiety and, in turn, inhibit their openness and candor. This is particularly true of witnesses who do not trust the process, do not want to be part of the investigation, or fear retaliation. It can also be more difficult for an investigator to develop rapport with a nervous, distrustful witness. These interviews often feel more like contentious depositions and less like an open and honest discussion. While the potential chilling effect of recording interviews is real, we also recognize a skilled investigator can likely put the witness at ease by explaining the benefits of recording.
Decreases your control over the evidence. Often times, if the investigator records, so too does the witness. This is a particularly common practice in “two-party consent” states, such as California. In California, Penal Code Section 632 prohibits a party from secretly recording confidential conversations.[4] When both parties record, the investigator loses some control over the confidentiality of the investigation. While we do not attribute ill-intent to most witnesses, we have to be aware witnesses can use the recording in whatever means they choose — send it to the media, post it online, provide it to other witnesses, or listen to it in preparation for follow-up meetings. These actions can potentially compromise the integrity of the investigation.
Cost and Time. There is a practical impact to consider with recordings, too. Transcripts can be costly, especially in large investigations with many interviews. Also, employers are required by law to conduct prompt investigations, and waiting for transcripts can occasionally slow the investigative progress. This can be impactful when the client needs an investigation to wrap up expeditiously.
How do I decide whether to record?
Make the decision with the client. Determining whether to record is an important decision for the investigator and the client to make together. Investigators should be prepared to discuss the benefits and downsides, particularly as they apply to the investigation at issue. Consistency is also important to keep in mind. If your client has a consistent past practice regarding recordings, follow it unless special circumstances warrant a departure. Similarly, remain consistent throughout the investigation. If you plan to record interviews, for instance, make sure you record all the interviews, not just those with the most material witnesses. Finally, once these decisions have been made, investigators should memorialize them in the investigative file.
Prepare for contingencies. Deciding whether to record interviews raises a number of other considerations. Plan for contingencies ahead of time by addressing important questions. If the interviews are not recorded, can the interviewee take their own notes? If there is no recording, will the witnesses get an opportunity to review the investigator’s notes for accuracies? On the other hand, if the interviews are recorded, can both the interviewee and the investigator record? If a transcript of the recording is produced, who gets a copy of it? Finally, consider telling the witness ahead of time whether the interview will be recorded. This should be mentioned in the witness’ written interview notice. That way, questions can be addressed with witnesses before the interview starts.
Ultimately, there is not a one-size-fits-all solution when it comes to recording interviews. Investigators need to be cognizant of the potential upsides and downsides. Work through the various considerations with the client at the outset of an investigation to help ensure a smooth, professional investigation ensues.
Matthew Rose is an Associate Attorney with Van Dermyden Maddux Law Corporation. His practice focuses on conducting workplace and Title IX campus investigations.
[1] See: https://cdn.ymaws.com/www.awi.org/resource/resmgr/files/publications/AWI-Guiding-Principles-Broch.pdf. “There are many effective ways to handle witness interviews. The investigator should create an environment that maximizes the chances of obtaining reliable information and should document (either through note-taking, recording, or some other method) the witness’ testimony in a reliable and consistent fashion.”
[3] With respect to Public Safety Officers, see: California Government Code Section 3303(g). For Firefighters, see: California Government Code Section 3253(g).
[4] California Penal Code Section 632 makes it a crime for anyone to “intentionally and without the consent of all parties to a confidential communication, use(s) an electronic amplifying or recording device to eavesdrop upon or record the confidential communication.” The statute defines a “confidential communication” as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes […] circumstance(s) in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
