Former employees are tempting sources of information in litigation for opposing counsel, given that they may be eager to divulge information, can offer some compelling information and occasionally can be disgruntled.
Generally, former employees are fair game in litigation and can prove to be a vital source of information that proves infinitely more compelling than any document. At the very least, a former employee can help connect the dots or corroborate what you already have on paper.
But there is also quite a bit of nuance involved in contacting former employees for litigation, including the legalities, finding former employees, approaching former employees and finding former employees who can be helpful to the case at hand.
So let’s dig in.
Are Former Employees Fair Game in Litigation?
When it comes to the legality of contacting former employees for litigation, the short answer is generally yes, former employees are fair game. Current employees, on the other hand, are generally off-limits.
Simply put, and without getting into the legal subtleties, the courts have made it clear that contacting former employees without notifying the company is acceptable, while current employees generally fall under the category of “no contact,” which prohibits contact with a person who is known to be represented by counsel.
There is quite a bit of nuance here that we won’t fully get into. But, for example, if you know that a former employee is represented by counsel or you are trying to induce a former employee to breach privileged or confidential information, contact is prohibited.
We are no legal experts, and we don’t pretend to be, so be sure to get legal counsel on this topic before taking our advice, as it may differ, depending on the jurisdiction.
Additional Resources
- Ex Parte Interviews with Current and Former Employees
- Former Employees are Fair Game in Litigation
- Yes, Plaintiff’s Counsel can Speak to your Former Employee!
- Communicating with an Employee of a Corporate Adversary
How To Identify Former Employees to Contact
Wouldn’t it be easy if there were a centralized list of employees who worked at a company, along with information regarding their titles, dates of employment, responsibilities and managers?
It would certainly make our job easier, but it just doesn’t exist.
While names of some former employees may come out in discovery, there are a number of methods of identifying former employees of a company. For example, there are dozens of resume databases available on a subscription basis; the professional business social networking site LinkedIn is also a possible resource. While resume databases tend to be better for more blue-collar workers, LinkedIn can be a gold mine if you are looking for people who have worked in positions that have more of a white-collar designation. And if you go the LinkedIn route, I strongly recommend looking into LinkedIn’s premium subscription services; they will save you a lot of time and headaches.
Other methods of finding former employees include reviewing historical captures of the company’s website; reviewing other social media websites (e.g., Facebook) for references to former employment; historical news media research; checking regulatory agencies, professional licenses, litigation filings, and corporate filings; and some deep internet research.
Dig Deeper: How To Find Former Employees — An Investigators Guide
Identifying the names of the former employees is one thing, but finding contact information for them is another. You can utilize consumer-grade investigative databases like TruthFinder, Spokeo and BeenVerified, but we have found these databases to be less than stellar when compared to professional investigative databases. Plus, these consumer-grade investigative databases don’t offer the same advanced-level research capabilities, such as radius searching, age range or employer, as the professional databases do.
We’ve also done some digging into which of the professional investigative databases are the most useful.
What Types of Former Employees Would Be Helpful?
As is often believed by those who watch too much crime drama, there always seems to be that one witness or former employee who spills the beans about everything. While we investigators can dream about the perfect witness who was in the right place at the right time and is ready/willing to talk, that’s rarely the case.
The types of former employees that might be helpful depend, of course, on what type of information you are trying to uncover. As a rule, I generally recommend starting with a range of employees who may have been in a position to have the relevant information you are seeking.
It may be helpful to interview former truckers who could speak about being overworked and undertrained, dispatchers who can talk about understaffing, or trainers who can talk about lack of support from managers.
Former employees can provide insight into the malfeasance, abuse or misconduct by the company’s officers or directors.
Former ride attendants at a theme park can speak to a history of accidents and lack of managers’ concern, but also of managers who may have reported (or disregarded) the concerns.
Former employees can also provide details on collusion between financial institutions, unreported sexual abuse allegations, allegations of corporate malfeasance or
wrongful conduct by superiors.
The truth is that I’ve seen as many janitors and executive assistants provide critical information as I have seen the “perfect” former employee who was in the right place at the right time on the right day provide it. So I recommend a bit of fluidity regarding the types of people you are going to interview, especially at the beginning.
What Is the Best Way to Interview These Former Employees?
I’ve talked quite a bit in other blog posts about telephone interviews versus in-person interviews. There are legitimate arguments for both methods. But in most cases, I would tell a client to conduct telephone interviews first, and if any interviewees are particularly helpful/meaningful, to follow up with an in-person interview to get a signed statement. The exception would be sensitive or high-profile interviews of a short list of witnesses.
Having said that, 100 percent of the time it is preferable to conduct an interview in person. In a perfect world, you would call up the former employee, set up an appointment for a specific place and time, meet the person in a neutral area, and conduct an interview with two investigators — one asking questions, the other taking notes.
But that reality doesn’t really exist in my world.
For one, these employees are under zero obligation to speak, so generally, I don’t want to give the person too much time to think about what they are going to say, so I don’t call them ahead of time to give them a heads-up. I realize that sounds sort of suspicious, but the reality is that if given the choice, most people won’t want to get involved. So, personally, catching a person off guard, so to speak, is better than giving him or her time to think about talking to me.
Also, an in-person interaction can be a logistical and budgetary nightmare when you’re trying to reach employees who are based in different parts of the state or country. Imagine flying across the country and showing up at someone’s home or business unannounced to conduct an interview only to find out that he or she is out of town.
If there are a few key witnesses who you need to speak to who you are not sure will be cooperative, an unannounced, low-key personal visit might be the best approach.
If there are dozens of former employees based around the state or country, telephone interviews might be best.
Or it may be best to use some sort of hybrid approach, doing some telephone interviews and some in-person interviews.
What Are the Risks of Contacting Former Employees?
Interviewing former employees can be a bit of a crapshoot.
For one, these former employees are under no obligation to speak, so—depending on the sensitivity of the questions, allegiance to their former employee or general reluctance—it’s quite possible that you will get a lot of the proverbial doors slammed in your face.
Frankly, I don’t blame them. Imagine a random person showing up on your doorstep asking you questions about your former employer.
Just recently, I wrapped up an extraordinarily sensitive case where nearly every person I contacted hung up the phone before I could even finish introducing myself. It was frustrating, exhausting and disappointing, but the client was well aware of the challenges and was grateful for and empathetic about our efforts.
Depending on how loyal the person is to their former employer, he or she may go back to their former employer and warn them about somebody snooping around, despite the fact that the contact was perfectly legitimate. I have seen some aggressive attorneys use aggressive tactics to stop any contact.
And there is always the possibility of problems if you reach a current employee.
What Happens If a Current Employee Is Accidentally Contacted?
Despite your best efforts to contact only former employees, there is no centralized determinant of a person’s employment status. As an investigator, we do our best to reach out only to former employees, but on occasion, we will contact someone who is a current employee of a company.
How would one know that they are a current employee?
Because determining a person’s employment status is one of the first questions we ask. “Just to confirm, I understand that you are no longer employed at XYZ Company.”
If we had accidentally reached someone who was a current employee?
We would apologize, thank them for their time and terminate all communications.
How To Approach the Interviews
Under normal circumstances, I subscribe to the idea of interviewing from the outside in. In other words, start with the people who might be on the fringes and work your way closer to the center.
This is much like peeling an onion, first gathering as much information from the surface to get to the core issues and facts, and ultimately working your way to the center of the issue.
Also, from an interviewer’s perspective, knowing the intimate details of the case before you speak to the most relevant players helps build confidence along the way.
There are different reasons why this may not be the best way to approach the case. For tactical reasons, you may want to get to the root of the issue more quickly, but as a rule of thumb, interviewing from the outside in is preferable.
How To Get People to Talk
There is an art and a science to getting people to talk. Sometimes, it’s nothing more than getting the right person on the phone or reaching them at the right moment. But other times, you need to help convince the person to talk.
I can’t force anyone to speak to me, so in building a rapport, I have to strike a balance between persistence, transparency, honesty and pushiness.
There literally are entire courses dedicated to teaching interviewing techniques, but here are a few quick tips:
👉 Build a rapport, but get to the point.
👉 Be accommodating, but don’t give them an “out.”
👉 Have empathy; a stranger asking probing questions can be intimidating.
👉 Be transparent and honest to develop a level of comfort.
👉 Be persistent; leave a message or two or three or stop by their residence and business. But don’t take it too far.
Can You Record Interviews?
Depending on the circumstance, interviews can be recorded, but generally, we don’t record interviews.
There are various state and federal statutes that apply to whether it is legal to record a phone call or conversation. In short, most states are one-party states, in which one person who is a party to the conversation must know about the recording; other states require the consent of all parties.
So for an in-person interview, you can check the local statutes to determine whether you are in a one-party or a two-party state. But the majority of interviews we do are on the telephone, so unless I ask the person which state they are in (which is an awkward question), I don’t know whether they are in a one-party or a two-party state, especially in this period of work from home and work from anywhere.
It’s just not worth the awkwardness or risk of potentially getting a critical interview discarded because of a technicality.
I can, of course, just ask them whether I can record the conversation, but that can put the person on the other side on the edge.
Instead, I take detailed notes of the interview and draft a memo immediately following the interview, which provides a non-verbatim account of the interview. If it’s an in-person interview, we would normally do the interviews with a two-person team, with one taking notes and the other asking the questions.
Final Thought
Former employees can be an incredibly powerful source for opposing counsel in litigation. But there are some nuances in terms of finding the right former employees, approaching these employees and getting the most out of these interviews.
