Draft Witness Interview Memorandum

Skill: Witness Interview Memorandum for an Internal FCPA Investigation

1. Subject-matter triage

• Treat this as a privileged internal-investigation memorandum, not a generic interview summary.
• Identify the witness, interview setting, and document set before narrating substantive facts.
• If multiple interviews, witness segments, or related witness statements are in scope, separate them chronologically and by witness; do not merge accounts.
• Preserve the distinction between the witness’s statements, counsel’s analysis, and any unresolved investigative questions.

2. Failure modes the skill is correcting

• Missing formal interview logistics: date, time window, location, attendees, and each attendee’s affiliation.
• Failing to document that Upjohn warnings were given, how they were given, and whether the witness acknowledged them.
• Summarizing the interview without tying the witness’s own words to the core investigative theories that matter in an FCPA internal investigation.
• Collapsing the relationship-management narrative into the circumvention theory, instead of showing how the facts connect.
• Treating due diligence gaps as background only, rather than as a standalone issue bearing on disclosure, approval, and concealment.
• Omitting privilege/work-product labeling or drafting in a way that blurs witness statements with counsel’s mental impressions.
• Failing to note document-by-document reactions, corrections, or disputes when records are shown to the witness.
• Losing chronology, especially where timing affects payment authorization, onboarding, government-service cooling-off periods, or subcontracting approval.

3. Legal frameworks / domain conventions that apply

• Mark the memorandum as attorney work product prepared in anticipation of litigation and preserve attorney-client privilege language throughout.
• Document the Upjohn warning as part of the interview record: company representation only, privilege belongs to the company, the company may waive or disclose, and the witness may seek separate counsel.
• For anti-bribery analysis, frame the witness’s account against the FCPA anti-bribery prohibition, 15 U.S.C. §§ 78dd-1, 78dd-2, and 78dd-3, including indirect payments through intermediaries.
• Treat foreign-official knowledge, approval, or circumvention as legally significant where the witness knew, suspected, or should have known of government connections.
• If a former government official is involved, assess the timing, role, and any cooling-off or revolving-door restrictions as an anti-corruption red flag, as reflected in the source materials or generally recognized compliance practice.
• If a due diligence questionnaire or similar onboarding form was required, evaluate incomplete or misleading disclosures as evidence of evasion, inadequate diligence, or concealment.
• If subcontractor approval was contractually required, analyze whether any engagement occurred without approval and whether the witness knew of, approved, or overlooked it.
• If a personal relationship, family tie, or other conflict could affect oversight, treat it as a potential undisclosed conflict relevant to diligence and supervision.

4. Analytical scaffolds

• Start with a formal identification block: interview date, start and end time, location, and all attendees with name, title, and affiliation.
• State the Upjohn warning separately and specifically, including who gave it, in what form, and the witness’s response.
• Provide a witness background section covering tenure, education if relevant to the matter, role, reporting line, and specific responsibilities tied to the investigation.
• Organize the account by investigative topic rather than by document order alone:
  • relationship inception and business purpose;
  • third-party vetting and onboarding;
  • government connections or prior public-service roles;
  • payments, approvals, invoices, and processing;
  • subcontracting and use of intermediaries;
  • questionnaire responses and any omissions;
  • any conflicts of interest or personal connections;
  • communications suggesting knowledge, direction, or evasion.
• For each topic, attribute facts explicitly to the witness using formulations such as “Witness stated,” “Witness recalled,” or “Witness denied.”
• Where the witness’s answer is inconsistent with documents or other evidence, note the discrepancy without overstating it as a factual finding.
• Extract statements that bear on intent, knowledge, authorization, concealment, or circumvention; do not bury them in general narrative.
• When documents are discussed, identify the exhibit or descriptive title, summarize the witness’s recognition or objection, and record any correction, qualification, or clarification the witness gave.
• Reconstruct event timing in sequence when dates matter; if the witness is uncertain, preserve that uncertainty rather than filling the gap.

5. Vertical / structural / temporal relationships

• Show the chain from engagement decision to due diligence to approval to payment to any subcontracting or downstream benefit.
• Distinguish the witness’s role from others involved in the relationship, especially where the witness supervised, approved, routed, or escalated issues.
• If timing affects legality or risk, place the witness’s account against the relevant period and explain why the sequence matters.
• Keep separate the company’s process requirements, what the witness says happened, and any later corrective actions.

6. Output structure conventions

• Use a memorandum format headed “PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT.”
• Use conventional sections such as:
  • Attendees and Interview Logistics
  • Upjohn Warning
  • Witness Background
  • Witness Account
  • Documents Discussed
  • Counsel Observations
  • Open Questions / Follow-Up
  • Next Steps
• Keep counsel’s impressions in a distinct section; do not blend them into the witness narrative.
• Preserve privilege designations and any Upjohn detail called for by the source materials.
• If the source materials identify controlling legal authorities or compliance rules, cite them by name or section rather than gesturing generally.
• End with an explicit action-oriented follow-up section that identifies who should do what next and by when, using the source materials’ timing anchors where available.
• Do not use a checklist-style issue table unless the source materials clearly call for it; the memo should read like a professional interview record, not an audit worksheet.