Even in the high-stress field of law, there’s a particular feeling of dread saved for investigations. The mad rush of preserving everything, the long lulls followed by frantic work, and the horror of watching a case spiral in complexity (and cost) all amount to heaps of challenges. Fortunately, there are proactive steps legal professionals can take to be prepared for investigations and ways to make the process run more smoothly.
During a panel at ILTACON 2021, four legal experts — Robert Bird of Ankura, Angela Walker of Latham & Watkins LLP, Darci O'Hearn of Dish Network, and Kristin Zmrhal of DISCO — discussed best practices to prepare for and handle investigations in a changing world. Here is their advice:
1. Don’t skip preservation
Ensure that you've locked down the data that you may need for the investigation as quickly as possible. Walker shared that when she is brought in for an investigation it’s not always the case that a legal hold has been issued. All panelists agree it is critical to move quickly in order to preserve information.
O’Hearn described the two kinds of legal holds at Dish Network. First, there is a standard legal hold, for when you reasonably expect litigation: having a list of custodians who need to be notified, data that needs to be put on hold (emails, Google Drive, etc.), and preservation guidelines. Then, there is a business continuity or investigational hold, which is not a formal hold notice, but is a backend mechanism that allows the team to hold accounts and information without sending notice. This ensures that data retention policies are suspended during the active investigation.
2. No case is too small
As Bird said during the panel, “No case really is too small for a discovery platform.” He elaborated, “Often folks will say, ‘It's just a couple of documents, I can look at them.’ But you want to be able to deliver in the short term, but also keep an eye on the horizon — so having a very defensible approach, even for those small cases is important. I've had FCPA investigations, for example, that have gone years and questions will come back and they'll say, what did you do in these first couple of weeks? And you want to be able to defend that.”
3. Outside counsel — to use or not to use?
The cost of outside counsel can be exorbitant — but can result in long-term cost savings when used strategically. Walker listed three considerations for bringing in outside counsel:
- If you need specialized expertise (on facts, risk exposure, or area of law);
- To bring an independent perspective; and/or
- If you anticipate a government inquiry or litigation.
Outside counsel can facilitate cost savings by leveraging their expertise to create a targeted investigation strategy that takes into account staging and prioritizing aspects of the review. Technology can be a helpful tool in this respect.
4. Keep cost and scale in mind
O’Hearn pointed out that in-house legal teams are often viewed as cost centers, so finding ways to cut costs, such as avoiding re-work of data processing, is important. Having a self-service tool where the team can load the data and look at it quickly aids the speed of the investigation — but she also needs it to scale in case the matter grows in size or complexity and later requires adding a review team.
5. Collection scoping is key
Bird recommended starting with what’s most readily accessible — often emails, chat communication platforms, and/or targeted personal or shared folders — and then iterating to be more surgical based on the risk profile of the matter. The panel recommended some specific techniques to determine the risk profile:
- Conducting preliminary interviews can be helpful for scoping purposes, including identifying the areas of risk exposure, the people involved, how they are communicating, where their data is stored, and if they are deleting data.
- Scope your search terms to ensure they are in fact hitting on the issues you are investigating, understand if there are any false hits, and take into account what casual language or industry terms people are using. An ediscovery provider can help you string together the appropriate search terms.
- Running data analytics and QC on the front end strengthens your investigation on the front end, creates a defensible process, and identifies gaps in communication that warrant explanation. (Data visualizations can be helpful here).
6. Use prioritization to avoid looking at every doc
Reviewing documents can be snooze work, but it’s absolutely essential for building the foundations of a case. That said, let technology help you! Prioritization techniques can bubble up the most important documents first to aid in the development of fact patterns and timelines. After a certain threshold, the combination of analytics and AI ensure you don’t have to actually look at every single document.
7. Check in regularly with the review team
This is a critical priority for Walker. She recommends training on the front end to ensure the team understands the issues, the people involved, and what is privileged, as well as regular check-ins to see what the team is finding to make sure they’re on the right track. A database export can be leveraged to create a significant document chronology each day so that you stay on top of what the team is seeing in the documents in real time. Staying in regular communication with the review team is particularly important during the COVID era, as remote review teams may not be able to talk to each other as easily. Real-time QC can come in handy here as well, to check tagging and to get a sense of pace that may indicate a knowledge gap. As Zmrhal pointed out, no one wants to wait until halfway through day two of a five-day investigation to find out documents are being tagged incorrectly — that repeated work is too big of a drain on efficiency.
8. Create a process memo
Walker calls this “one of the most important things you can do” in an investigation. Documenting every step of your investigation is helpful if you expect the government to come calling, but it’s also a useful internal tool. If new issues arise, it allows you to look back and see what areas of the investigation need to be built out.
9. Explore ways to save on hosting fees
If an investigation goes dormant for an extended period of time, look into changing how you store the data for that matter to reduce costs. O’Hearn advises monitoring open databases monthly, evaluating which matters are not actively being reviewed and can therefore be moved to an inactive storage status.
10. Have a proactive plan
O’Hearn has a predefined set of locations that her company puts holds on as soon as they know an investigation may come into play. “You can't think of everything all the time, but if you have data sources in your organization that have short retention policies on them, it's really important to know what those are so that you can place them on hold if and when you need to,” she explains. For example, the team knows that if chat data, which has a short retention policy at her company, may come into play, they need to ask for the hold as soon as possible.
11. Focus on simplicity
This was Bird’s final tip of the panel. Investigations are inherently complex, with tight deadlines, and many unknowns. He advises asking yourself, “How can I make this simpler while still getting to the outcome that I want as quickly as possible?”
Though investigations can cause a panic, the panelists have shown that it doesn’t have to be that way. With the right processes in place, the right review platform, and a proactive rather than reactive plan, legal professionals can save themselves a lot of stress.
Watch the full ILTACON panel (ILTA login required).