New Mexico prosecutors have made headlines with allegations of child sexual abuse against actor and director Timothy Busfield. But he’s not the only one defending himself. They’ve also accused Warner Bros. Television of botching an earlier internal company investigation into the actor and impeding their own criminal probe.
Busfield is battling charges he inappropriately touched child actors while he directed the Fox series The Cleaning Lady, produced by WB TV. According to state officials, the studio’s third-party probe — prompted by an anonymous tip to the SAG-AFTRA hotline — was mishandled: Key witnesses weren’t interviewed and no one involved with it ever publicly reported the allegations. Moreover, prosecutors say, it’s hindered law enforcement’s own inquiry, particularly by slow-walking the handover of documentation.
“The delayed and limited cooperation by Warner Bros. in responding to a search warrant further underscores the institutional barriers that have historically enabled this type of misconduct to continue,” a Jan. 14 filing in the case stated.
Whatever the ultimate verdict in the Busfield case, the episode provides a rare window into the challenges and risks of the so-called third-party investigation, a common yet largely misunderstood practice for major Hollywood firms facing explosive allegations, public or otherwise.
Especially in the wake of the #MeToo movement, it’s become almost second nature for companies to commission outside investigators to probe some of their most sensitive issues. Meanwhile, for many law firms, including those routinely entrusted with Hollywood’s business, this corporate detective work is a popular and lucrative practice area.
But as the Busfield case illustrates, even though an outside investigator may seem independent, its findings can be treated with skepticism by critics who often believe these probes are empty exercises in fact-finding whose fundamental purpose is shielding the companies paying for them — and they are not wrong. “These investigations are typically being done to insulate the company from potential liability,” says Douglas Wigdor, a litigator who has handled prominent sexual harassment and abuse cases, like Cassie Ventura’s civil suit against Sean Combs.
Warner Bros. declined to comment. The law firm that conducted the third-party investigation on behalf of Warners, Solomon Law, did not return a request for comment.
The motivations for companies to hire an outside investigator vary. One common reason is that those accused of misconduct — for instance, a C-suite executive — rank higher in the organization than the human resources or legal personnel who might otherwise tackle the inquiry. A company simply might not have the resources or the time to conduct an investigation itself, or may prefer an outside investigator for reasons of perception or subject matter and skills (nobody inside the firm may be an expert on, say, insider trading).
There are also legal issues at play: If the matter ends up in litigation, the company can demonstrate through its investigation that it did its due diligence. Take Cravath, Swaine & Moore’s investigation a few years ago into Chris Cuomo’s time at CNN, a probe that preceded Cuomo being fired. Cuomo subsequently retained lawyer Bryan Freedman to file a $125 million wrongful termination suit that landed in arbitration. And once companies are on notice of alleged sexual assault, they’re obligated to take reasonable steps to prevent further misconduct in order to avail themselves of certain defenses in civil cases.
Court documents and statements issued by New Mexico prosecutors show WB’s report on Busfield found no misconduct and undermined allegations that he engaged in sexual abuse. According to an affidavit, WB’s law firm suggested that allegations were a form of vengeance by the boys’ mother against Busfield after their roles were recast for the fourth season. Among the main findings in the studio-commissioned report: Elodie Yung, the series’ lead actress, said “she was shocked” when the accusers’ mother told her “that she would get revenge against Tim Busfield.” This aligns with what Busfield told law enforcement when he was interviewed.
The finding, in part, turned on WB’s assessment of the credibility of the victims’ parents. It’s been used as ammunition for Busfield’s lawyers, most recently to get him released from jail while awaiting trial.
“They’re con artists,” said Amy Fayerberg, an attorney representing Busfield, at a Jan. 20 hearing, referring to a conviction against the boys’ father for wire fraud in a mortgage fraud scheme.
One unresolved issue the internal report may have addressed involves a question surrounding why an iPad allowing the children’s parents to watch them was taken away. “Timothy said we don’t really like that parents had iPads while on set, and that it was not a standard process, and that they do not encourage it,” the affidavit reads.
Another involves the show’s set teacher allegedly failing to supervise the children at all times. Law enforcement was told by a production assistant, per a court filing, that “she remembered [the alleged victim’s] set teacher, Lee [Lewin], who seemed to lose track of what the child actors were doing,” saying she gave an “example that [alleged victim] was stopped unsupervised, riding a skateboard through a live set at one time.”
New Mexico prosecutors have criticized WB for belatedly providing access to its finished report and its “limited cooperation.” After reading the studio’s internal report, which hasn’t been publicly released, the lead detective on the case moved to interview other child actors on set, eliciting an email from WB’s lawyer that read “you need to contact” his firm, Proskauer Rose, for such matters, signaling that he would be representing not only WB, but its employees as well.
In these types of situations, the investigating company isn’t obligated to represent witnesses and interviewees with knowledge of the situation. It chooses to do so. Here, WB moved to represent all cast and crew on the set of the show in interviews with law enforcement. “This can often be a red flag,” says David Ring, a lawyer who represents sexual abuse victims. “A lot of the time, the employer wants to control the interview process when law enforcement is involved. They force a lawyer upon the witness.”
According to prosecutors, Cleaning Lady actress Yung hasn’t been cooperating for unknown reasons. “Yung was close to the [boys’] family. They went on vacations,” said Bernalillo County Deputy District Attorney Savannah Brandenburg-Koch at a Jan. 20 hearing. “However, they have not been compliant in this investigation.”
The third-party probe doesn’t come cheap. The cost to hire an outside firm can easily surpass six figures, depending on the number of interviews to be completed and documents reviewed. Investigators rely on the preponderance of evidence standard used in civil courts as their burden of proof, not the beyond-a-reasonable-doubt threshold for criminal justice.
A key challenge for outside investigators is building trust with employees, who are often concerned that the third-party fact finder is foremost an agent of the employer’s interest and, regardless, they fear retribution over their participation in the probe. “I emphasize that my bill will be paid regardless of what I find,” explains Vida Thomas, managing partner at Oppenheimer Investigations Group and a board member at the Association of Workplace Investigators.
As for reprisal, she notes that transparency about process is crucial. “It’s important to be upfront about what you’re doing with [the information] they’re sharing. That you may not be able to promise anonymity because you can’t necessarily keep it — for instance, if we uncover wrongdoing that needs to be reported to an outside agency, witness’ identities may be revealed. Or if it goes to litigation, their names may get out there.”
And then there can be pressure from investigators’ clients, the people who commissioned the investigation to begin with. Keith Rohman, a licensed private investigator and the president and founder of Public Interest Investigations, Inc., says he doesn’t work for a client if he doesn’t secure sufficient independence to complete a probe: “I’m not going to tell you I never get pressured by a client to take a finding one way or the other. They’ll ask to see a draft report … I always say, ‘I am happy to correct typos, if I get the title of somebody wrong, but the findings will stay the same.’”
Ultimately, experts point to a few factors that can help shed light on the integrity of an investigation. A company enlisting an investigating firm that it already does separate business with can raise eyebrows and tank the perceived independence of an investigation due to a potential conflict of interest. According to critics, there may be an unspoken agreement for friendly findings. “By no means are they objective because there’s a vested interest in continuing to be their counsel,” Wigdor says.
“You want an investigator certainly who has adequate training in the field. You want them to have made every effort to interview all the relevant witnesses,” adds Rohman, who testifies as an expert witness in trials on the validity of internal investigations. “You want them to have prepared a report in which they analyze the evidence from both sides and explain why and how they reached the conclusion that they did based on a preponderance of the evidence standard.”
And in Hollywood, there is another skill that would be ideal for both third-party investigators and law enforcement: sensitivity to the freelance nature and informal culture of employment on Hollywood productions.
In his arrest warrant for Busfield, Albuquerque police officer Marvin Brown notes that “when talking with employees of Warner Bros., they were very afraid of retaliation from Warner Bros. if they talked to me.” One hair stylist on the show who spoke with him feared, he wrote, “that she would no longer be able to work in the film industry.”
The dread of blacklisting among cast and crew members who jump from job to job in the entertainment industry isn’t unique to The Cleaning Lady. It’s widespread, particularly at a moment when employment in entertainment production is far more perilous than in the past. This fear is fueled by the way most freelancers get jobs in the business, by getting a call from someone they know rather than through a formal application process. In sensitive situations, it may play a role in dissuading some from full participation in an investigation.
Rohman says that he responds to fears of retaliation in his work by telling interviewees that he can sometimes anonymize whistleblowers in his report, but the accused needs to be able to respond to claims against them in an informed way. “You’re threading a needle,” he says.
