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The number of internal investigations that legal departments find themselves grappling with may be on the rise at a time when a period of enforced remote working is making it more difficult to conduct those processes than ever before.

On Wednesday, the law firm of McDermott Will & Emery hosted a webinar titled "Best Practices and Tactics for Conducting an Internal Investigation in the COVID-19 Era" and one of the biggest takeaways was that the pandemic opens the door to a whole host of investigative activity.

Panelist Dana McSherry, a partner at McDermott, pointed to the greater capacity for employee misconduct when working remotely. She also noted that the Department of Justice will likely be on high alert for COVID-19-related abuses, such as the misuse of stimulus money.

Organizations that chose to delay the resulting investigatory work may be playing with fire since key evidence or witnesses can be lost to layoffs or other unexpected developments. McSherry urged the audience to keep explicit notes of any deviations that may occur from a standard investigation schedule. "Any sort of alteration to your approach or your timeline should be thoughtful and reasonable and justified under the circumstances," McSherry said.

"I sort of think about it like this: If you get a subpoena while you are waiting to investigate an allegation of potential wrongdoing, you are certainly going to wish that you started your investigation sooner," McSherry said.

But to be sure, the realities of the pandemic and the surge in remote working that has followed can make conducting an investigation more difficult. For example, legal departments may have to increase their reliance on employees to preserve key data, which isn't always ideal given the range of technological competencies contained within a given workforce.

Panelist Shamis Beckley, a partner at McDermott, indicated that attorneys might have to be proactive about coaching employees to preserve data. One example she gave was teaching someone how to adjust the settings on their phone so that text messages aren't automatically deleted every few days.

"It's not just enough to tell people to preserve. Think about how you can help them do that or tell them how to do that," Beckley said.

A similar complication that may pop up—especially during a pandemic—is the safeguarding of personal health information. Beckley encouraged corporate attorneys in the audience to help their employees think carefully about any documents they may be handling that contain personal health information and to review the important safety measures like passwords.

One area where a greater emphasis on remote technologies may actually benefit the investigation process is conducting interviews. Matt Knowles, a partner with McDermott, pointed out that phone calls or videoconferences allow lawyers to cram more interviews into a shorter time frame, often at less expense to the client due to the lack of physical travel involved.

Still, this process requires a fair amount of strategy. Knowles encouraged people to think carefully about the use of phone versus video, which may hinge largely on what the interview subject is most amenable to or their level of technical prowess. The phone, for instance, may make it harder to tell if the interviewee is recording the conversation surreptitiously.

"Assume you are being recorded, assume that your questions and the way those questions are being answered could be disclosed down the road and be really thoughtful about your approach," Knowles said.