Is an Upjohn warning required?

An Upjohn warning is the US attorney-client doctrine that the lawyer represents the company, not the interviewee. Where the interview is conducted by counsel (in-house or external) under privilege, the warning should be given so the interviewee understands the scope of confidentiality. Where the interview is conducted by a non-lawyer compliance officer, the warning does not apply but a parallel disclosure about the scope of confidentiality is given.

Should interviews be recorded?

Recording requires consent under most EU jurisdictions and creates a discoverable artefact. Many investigators prefer detailed contemporaneous notes plus a memorandum within 48 hours; the memorandum is signed by the interviewee. Where recording is used, the consent and the recording itself are part of the case file.

What if the interviewee refuses to participate?

Employees typically have a contractual duty of cooperation in internal investigations under the employment relationship; refusal can itself be a disciplinary matter. Subjects of the report retain the right to be heard under Article 22(1) of the Directive but cannot be compelled. The investigator documents the refusal and proceeds on the available evidence.

Free template · Updated May 2026

Witness & Subject Interview Protocol

A protocol for interviewing witnesses and the subject of a whistleblower investigation. Trauma-informed where relevant; preserves privilege where the interview is conducted by counsel; satisfies Article 22(1) of EU Directive 2019/1937 on the rights of the subject.

Before the interview

Confirm the interview is needed by reference to the investigation plan; avoid speculative interviews.
Decide on the interview order (peripheral witnesses first, subject last).
Review relevant documents in advance; prepare an outline rather than a script.
Identify a note-taker if available; if not, prepare to take detailed notes yourself.
Reserve a private room. Online interviews are acceptable but ensure both sides are alone.
Where the interview is under privilege, prepare the Upjohn warning.
Where trauma is foreseeable (harassment, assault, coercion cases), refresh the trauma-informed protocol below.

Opening

Use the following opening (adapt the bracketed text):

"Thank you for coming. My name is [Name]; I am [role / engaged by the company as external counsel]. I am conducting an internal investigation into [neutral subject matter, without naming the reporter or the specific allegation more than necessary to orient you]. My role is to gather facts; I will not be making decisions about what happens as a result of this investigation. Decisions will be made by [closure panel] based on the evidence collected."

Confidentiality scope (where the interview is by counsel):

"I am a lawyer engaged by [Organisation]. The work I am doing here is on [Organisation]'s behalf, not yours, and the privilege over our conversation belongs to the company. The company will treat what you say in this interview as confidential within the investigation team but may share it with internal decision-makers, external counsel, or authorities where required by law. If you want your own legal advice you should obtain it from a lawyer of your choice."

Confidentiality scope (where the interview is by a non-lawyer):

"What you tell me will be kept confidential within the investigation team. It may be shared with internal decision-makers, with external counsel if the company engages them, and with authorities where law requires. We will not share the identity of any reporter under Article 16 of the EU Whistleblower Directive."

Voluntary participation reminder:

"You are here voluntarily and you can stop at any time, take a break, or decline to answer a question. Refusing to cooperate in a fact-finding may have employment consequences in some circumstances; I am not making any threat by saying that, I am letting you know the framework."

Subject only: inform of the allegations in neutral terms.

"I want to tell you what has been raised. The allegations are: [neutral paraphrase, without disclosing the reporter's identity, sufficient for you to respond meaningfully]. I want to hear your account before drawing any conclusions."

Free narrative

Invite the interviewee to tell their account in their own words.

"Please tell me what you know about [topic]. Take your time; start wherever it makes sense to you. I will follow up with questions afterward."

During the narrative: take notes, do not interrupt for content, mark passages to follow up on. Use minimal encouragers ("go on", "and then?"). Allow silence.

Specific questions

After the narrative, fill gaps. Move from open to closed:

"Can you tell me more about [topic]?"
"Who else was present?"
"Was there documentary evidence: emails, messages, system records?"
"How did you come to know this?"
"Have you spoken to anyone else about it?"
"Is there anything I haven't asked that you think I should know?"

Avoid leading questions in evidentiary work ("Did he say X?" replaced with "What did he say?"). Avoid double-barrelled questions. Avoid speculation prompts ("why do you think..."). Test inconsistencies between accounts neutrally.

Trauma-informed practice (where relevant)

Allow the interviewee to choose their seat and the door position.
Use the interviewee's language for the events (their words, not yours).
Take breaks at the interviewee's signal; offer water.
Do not press for chronological order; trauma narratives often emerge non-linearly.
End on a stable topic, not the most distressing one.
Provide information on employee assistance / mental-health resources.

Closing

Ask if the interviewee wants to add anything not yet covered.
Explain next steps: a written memorandum will be drafted and shared with the interviewee for verification within 48 hours; the interviewee will have a chance to add corrections.
Explain anti-retaliation protection where the interviewee is a witness who could be exposed.
Thank the interviewee.

Documentation

Contemporaneous notes signed and dated at the close of the interview.
Formal memorandum drafted within 48 hours: scope, opening disclosures, narrative summary, specific Q&A, closing, signatures.
Memorandum shared with interviewee through the case channel; corrections accepted within 7 days; final version stored in case file.
Audit-log entry recording the interview, date, attendees, duration, and document location.

Use alongside the Investigation Protocol and the Oral Intake Script.