To record or not to record? That was the question posed by Wednesday morning's Relativity Fest London panel "The Pros and Cons of Recording Corporate Investigations Interviews and Relativity Workflows." A virtually assembled panel explored the merits and risks inherent to a variety of workplace investigation scenarios, including remote interviews conducted in accordance with COVID-19 social distancing measures.

The major takeaway was that while recording interviews with parties involved in a corporate investigation can provide an extra layer of context and clarity unattainable from written notes alone, obtaining consent in the age of online conferencing platforms remains more critical than ever.

"Consent is obviously key here, and if they don't consent then I don't think you can go ahead with the interview being tape-recorded. I think you have to step back and take a note of it," said panelist Eve Giles, a partner at Allen & Overy.

The outbreak of COVID-19 has also introduced some new complications into the mix, forcing more interviews to take place remotely across video chat platforms or teleconferencing. Giles stressed that the same principles around consent apply. Even if a video or phone conferencing platform openly states that chats are being recorded, investigators still need to obtain informed consent from interview subjects.

Another challenge is that video or phone conferences can make it difficult to tell if an interview subject has someone else in the room silently feeding them advice. Recording those interactions can provide valuable context that can help fill in the gaps later.

"If there's a pause between questions is somebody else telling them what to say? Can that happen? Yes it can. And it's those sort of things that is a reason I would want to record it," said panelist Basha Galvin, head of investigations at Tullow Oil.

But even outside of the online conferencing format, there are plenty of reasons it may be worth the time for corporate legal departments to chase the consent needed to record interviews with subjects party to an investigation. Galvin outlined a few of the general benefits to be gained by recording interviews versus relying on written notes. For one, investigators who aren't focused on scribbling notes can pay more attention to the subject's facial expression and body language.

Putting interviews on tape also eliminates the potential for key objections popping up further down the line. Galvin noted that when an interview is recorded, protests along the lines of "I didn't say that" tend to be replaced with less definitive statements like "I didn't mean to say that" or "I shouldn't have said that."

"I want better engagement with the person I'm interviewing. I want to listen better. I want to capture the facts," Galvin said.

Still, the decision to record an interview shouldn't be taken lightly and there are some potential drawbacks that corporate legal teams may want to take into consideration before giving an investigator the green light. After all, the downside to having an interview recorded verbatim is that the interview is recorded verbatim.

Giles at Allen & Overy pointed out that a subject or their counsel may be more likely to request a full transcript of an interview if they know it's been recorded. Unlike summary notes, where colorful language about a company's management team can be omitted, a recording captures everything—warts and all.

There is also the question of consistency. Companies recording an interview with regards to a sales manager accused of wrongdoing may have to be prepared to do the same with a CEO or board member.

"I think one of the key issues here is parity," Giles said.