Ediscovery for Investigations - Not So Elementary!

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Whether it is a high-stakes internal investigation, due diligence in anticipation of a merger, or regulator-driven, the pressure legal practitioners face in dealing with an investigation is immense. Tight timelines, large and disparate data volumes, and bad actors still employed in an organization create immense pressure to complete an investigation expeditiously, with extreme control over the flow of information, sufficiently defensible procedures, and adequate documentation in the event of follow-on investigations or litigation. 

The following tips and tricks help legal practitioners manage the pressure cooker of complex ediscovery for investigations: 

1. Understand, prioritize, and triangulate

Understanding the potentially relevant data sources across all custodians is key. Knowing what data is potentially in scope, preserving it early, and then using custodial interviews to further refine scope helps accelerate an investigation. Use the insights from each data source you investigate to refine the scope and key concepts in additional data sources to triangulate on key evidence, interrogate multiple information sources, and not max out your timeline or budget. 

2. Trust the algorithm

Tools with active learning are useful in an investigation because looking at every single document is less important than quickly surfacing the most relevant information. DISCO has seen upwards of 60% reduction in time to insight via strategic deployment of active learning in managed review. 

3. Use all tools in your toolbox

Combining multiple analytic tools — like social network analysis to identify key custodians, with concept clustering to identify or validate key concepts, and leveraging active learning to accelerate surfacing of evidence — drastically reduces total time to review. 

4. Determine if bad words resulted in bad acts that are actionable

Mapping unstructured communication to the structured data in an investigation establishes whether problematic behaviors occurred. Understanding in a securities litigation if the Bloomberg chat about spoofing granny was accompanied with the actual trades that the SEC prohibits is the difference between a penalty and no action. 

5. Let go of eyes on every document

In the case of an investigation, one needs to uncover the facts — not necessarily physically look at every document in a data universe. Rely on technology that can exclude non-relevant information more quickly than human reviewers. 

6. Preserve broadly because you don’t know what you don’t know

In an investigation, especially one with a high likelihood of follow-on litigation, it is important to cast the net widely to identify and preserve all potentially relevant data at the outset. The cost to preserve is a small one when compared to sanctions for spoliation. 

7. Only the A-Team

Confidentiality is paramount, especially when bad actors may still be actively employed. Limit the number of people who are on the investigation teamt and only involve people deemed absolutely necessary. Ensure that all service providers are operating under strict confidentiality agreements. 

8. Speedy collection

Most organizations can remotely collect most employee emails and documents, I recommend deploying the approach early in the investigation to avoid alerting the targets of an investigation or opening up the opportunity to destroy evidence. If you have to enact a legal hold, kick off remote collection in parallel with the delivery of the notice.

9. Don’t cut corners

An investigation can lead to litigation or larger regulatory scrutiny, so the time and cost pressures facing a practitioner should not be used as a justification to cut corners. Employ the same levels of forensically sound, appropriately inclusive collection, and defensible application of workflows and technology to an investigation as you would employ in a DOJ investigation or a litigation. 

10. Document and then document some more

Along with treating an investigation with the same level of forensically sound and defensible processes, it is imperative that the entire process is documented to form a comprehensive audit trail that can be referred to in the event of regulator scrutiny or follow-on litigation. Everything from the investigative process and all decisions and reasoning with a granular focus on all preservation and collection actions undertaken.


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