What do you do if an interviewee asks you about privilege for your investigation?A lot of investigations are done under privilege. I am not a litigator, I’m an investigator. So, I don’t pretend to be an expert in privilege and I know, across the country, perspectives on the way privilege will encompass an investigation differ from state to state and region to region and style to style. There’s a lot of things about privilege that an investigator probably does not have an advanced understanding of, but also, as a third-party investigator, you don’t control it either. The employer controls an investigation’s privilege. If somebody you’re interviewing asks about privilege, their communications with you are not privileged because even if you are an attorney investigator, you are not representing that person you’re speaking to, but relatedly, you don’t represent the employer that you are working for and being paid by. Really, the employer holds the privilege to the extent that it even exists. If a client is asking about privilege, maybe you come from a litigation background and are comfortable answering that question, but if a client asks me about privilege, I generally encourage them to talk to their investigator that works in the courts that this might go through. More poignantly, if an interviewee asks you about privilege, the answer is simply that you don’t represent them so there is no legal privilege. You cannot guarantee an interviewee the privilege of your communications, you can only offer that an interview will be confidential.
