Companies facing investigations from competition or regulatory authorities frequently require the support of forensic experts, for instance to respond to information requests in merger control proceedings, investigations regarding alleged violations of competition rules or regulatory requirements, to collect information for a leniency application and/or in connection with a dawn raid. This article provides tips and tricks when facing such a situation, with a focus on how to cooperate efficiently with the forensic IT team.
Setting the scene: key characteristics of forensic investigations
Before diving into the tips and tricks, it is essential to understand the key characteristics of forensic investigations. These characteristics determine what is required to carry out a forensic investigation most efficiently in cooperation with the forensic IT team.
- Forensic investigations can be very time sensitive due to strict deadlines.
- Forensic investigations are generally time-consuming (due to the time it takes to gather, process, review, analyse and report on large amounts of data).
- Forensic investigations usually concern large datasets. The forensic team plays an important role in identifying the data that require review. This includes ensuring the collection of the complete dataset from the company and filtering out data that is manifestly out of scope/irrelevant, unreadable, corrupted, etc. The dataset is then further reduced by applying search terms, filtering out duplicates and creating clearly arranged batches for review by the legal team.
- A forensic investigation requires a state-of-the-art eDiscovery platform where the dataset can be uploaded to and analysed remotely by the legal team.[1]
- A forensic investigation always requires a well thought out plan of how to approach the eDiscovery depending on the purpose of the investigation, the amount of data, the timeline, the required reporting, the set-up of the legal/forensic team, and potential challenges resulting from special circumstances, etc.
Please see our article on the technical forensic aspects of the investigation for more information.
Tips & tricks
1.Pick the right forensic team
Effective cooperation between the legal team and the forensic team is essential for carrying out a successful and timely eDiscovery. It is thus necessary that the legal and forensic teams communicate well, support each other, collaborate smoothly and are in close contact. Picking an experienced, pragmatic and communicative forensic team is essential for a successful investigation. It will depend on the purpose and scope of the investigation which qualities are most important.
In order to avoid miscommunication, particularly when under pressure, it is important for forensic teams to have experience regarding the type of investigation for which they are being engaged. For instance, a forensic team that has never assisted a company in connection with a leniency application under competition law may struggle to understand the particular stringent confidentiality requirements in this case.[2]
We increasingly see that company auditors are verifying whether a company’s internal investigation is carried out in line with market standards. This often includes interviews of the persons involved in the document review, including the forensic team, with detailed questions on the way in which the data were collected, processed and stored; the reasons for the choice of the custodians and time periods covered and the keywords used; the method for identifying documents as relevant/irrelevant; and the qualification/level of experience of the forensic team and the reviewers. This is also an aspect to take into account when selecting the forensic team.
Depending on the situation, it can be wise to select a team that is able to provide their services in different time zones. This may either be required by very strict deadlines, where the legal team is working around the clock, or it can be efficient to have the forensic team carry out data processing / update task during out of office hours of the legal team. Moreover, to avoid potential concerns under data protection law regarding international transfers of personal data it can be an advantage to work with a forensic provider that has servers in several regions and thus can process data in the region where they are located.
Lastly, when selecting the forensic team, it is important to ask which tools/software the provider is using for conducting the eDiscovery. Having access to innovative and modern tools is preferable, to ensure an efficient and smooth process. The forensic team must also be able to explain to the legal team how its platform operates and train reviewers on how it is best used.
2. Set clear deadlines
As forensic investigations are usually time sensitive, it is essential to set, and regularly communicate, the deadlines that you are working towards. These deadlines must be set in close cooperation with the forensic team, as they are best placed to determine what is manageable, in particular in view of the time required for the data processing. Conversely, the legal team is best placed to estimate the time it takes to review the datasets and finalise the reporting.
3. Manage the dataset and its size
While the legal team knows best what information the company is seeking to find, the forensic team is usually best placed to determine how to search for this information most effectively in a large dataset. The forensic team can help to identify the most suitable search terms and combinations of search terms and can run alternative lists of search terms to obtain a manageable number of documents to be reviewed. The legal and forensic teams must thus work together in close cooperation to ensure that the search terms applied to the dataset provide the desired result.
4. Cover legal professional privilege
In order to ensure that the forensic investigation is fully covered by legal professional privilege (which, in short, protects the confidentiality of communication between the company and its external legal counsel), it is important that the forensic team is retained and acts under the instructions of the company’s external legal counsel. External counsel should not only oversee the investigation plan, the search terms and selection of relevant data, but also the review of the data and the assessment of the findings in order to advise the company on its position and next steps in relation to the investigating authorities.
5. Be mindful of data protection requirements
In a forensic investigation, one of the aspects to discuss with the forensic team (and a GDPR specialist) is the roles of controller and processor under the GDPR. This is of relevance in deciding who acts under the instructions of whom, and who is responsible for the data from a GDPR perspective. Please see our article on data protection considerations for more information on this point. Another aspect to be discussed with the forensic team is where the data is stored, to address potential data privacy issues. Bear in mind that most often a Data Protection Impact Assessment (DPIA) will be required in relation to the data subjects (employees) involved in the investigation.
This article is part of a special edition on Investigations of our monthly newsletter Competitive Edge.
[1] eDiscovery is the process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence. An eDiscovery platform is an automated document review software that allows legal professionals to handle electronic documents during investigations.
[2] In most jurisdictions, a company that has applied for leniency must treat the fact that it did so and the contents of its application strictly confidential. Non-compliance with this obligation can result in the loss of leniency and thus may result is a significantly higher fine.
