Overcoming the E-Discovery ‘Fear Factor’ in Government Investigation

정부조사에 따른 보존 처리절차는 eDiscovery 와 동일하다 보면 되며 범위나 방식에 대해 협의 제안이 가능하다

Any organization that has been the subject of an SEC investigation or received an administrative subpoena from a government agency will attest to the fact that being compelled to turn over documents isn’t a whole lot of fun. However, the reality is that many of the processes that organizations rely on to fulfill these requests are the same ones routinely used when responding to e-discovery requests during civil litigation, with a few important distinctions.
The topic of investigation-related e-discovery was the subject of Exterro’s recent webcast “E-Discovery Challenges in Responding to Regulatory Demands.” Attendees were treated to three unique perspectives on the subject: that of an in-house e-discovery manager, an outside attorney and an e-discovery consultant. Despite their distinct backgrounds, all three speakers agreed that investigations usually bring with them a sense of fear that drives organizations into preserving and collecting electronically stored information (ESI) broadly and producing more than what is needed. They offered a number of tips for lessening this investigation “fear factor” and discussed ways technology can be utilized to more quickly, efficiently and cost-effectively respond to requests.
Proactively Identify Where Relevant ESI Resides
Document requests from government agencies can be broad and ambiguous. “Their categories of documents are just as broad, if not more broad, than what you’d find in litigation,” said Mike Frazier, e-discovery manager for healthcare products manufacturer CareFusion. “The big difference is that objecting to a government subpoena and the over-broadness of the categories of documents that they’re apparently looking for or who they want to interview is a little more difficult than it is in a civil litigation matter.” For this reason, the speakers emphasized the important role data mapping can play in enabling organizations to quickly identify where certain ESI resides across the enterprise. “Having the data map in place before the subpoena gets there is critical. It just streamlines everything,” said Jennifer Feldman, of Counsel with DLA Piper. Many organizations shun data mapping because of the sheer magnitude of work involved in manually mapping the enterprise’s data population. Some companies, however, have found success utilizing specialized tools that can automate much of the data mapping process helps to ensure that they stay current as the information ecosystem evolves.
Define Roles and Document the Process
Most large organizations have fairly defined processes and procedures for responding to litigation and related e-discovery requirements. Investigations tend to spur a much more reactionary, haphazard response, which can lead to mishaps, missed deadlines and important details slipping through the cracks. Rob Hichens, senior director at Huron Legal, said this problem is exacerbated by the fact that investigations don’t always flow through the legal department; rather, they’re addressed by the particular business unit involved in the investigation. “Oftentimes, legal might not even be aware that the company received a request or they might find out well after the fact and that can lead to a lot of challenges,” he said. Hichens suggested that legal departments should frequently conduct internal “e-discovery roadshows” to educate the organization as a whole on how to respond when an external request comes in. Besides determining who does what and when, a defensible process requires scrupulous documentation. This is true of responding to civil litigation discovery as well, but investigations raise the stakes since the scrutiny over the process is usually amplified and mistakes can be severely punitive. “I’ve taken a much harder line on documenting what I’ve collected and when, who I’m interviewing, etcetera, in a government investigation,” said Frazier. “Internally, having a tool like Exterro Fusion® where you have an audit trail of who’s acknowledged the hold, what collections were done, chain of custody reports, is very important.”
Don’t be Afraid to Negotiate Scope
Parties involved in civil litigation negotiate the scope of e-discovery during court-mandated meet-and-confer sessions. Government investigations have no equivalent, formalized process, and it’s widely perceived that organizations are strictly beholden to whatever is being requested of them – and those requests can be very broad. In some situations, such as serious criminal probes, this is true. But Feldman said most government agencies are far more amenable to negotiating scope than many people realize. “I find that a meet-and-confer with the government tends to be far more productive in terms of limiting your outside spend because you can almost always agree on some concentric circles of custodians, timeframes and subject matters, and they welcome that,” she said. “They don’t have a lot of resources, so the last thing they want is for you to run some broad search terms and dump on them a bunch of data.”
For this reason, there is a premium placed on an organization’s ability to quickly locate relevant ESI and gain an understanding what is relevant and how much is there. Organizations that utilize advanced search and analysis tools capable of assessing data sets in-place, prior to collection, tend to be much better equipped to negotiate scope than those that rely on the traditional collect-first approach.