Internal investigations, technology and litigation: key takeaways for in-house lawyers

An in-session poll at Thomson Reuters’ recent GC Leadership Summit revealed in-house lawyers’ top concerns when handling internal investigations. On a show of hands, many felt that they lacked the necessary understanding of the technology software options available for internal investigations and document review. How to decide the right people for an internal investigation, how to retain confidentiality and privilege, and how to be fully prepared and resourced for e-disclosure, were also high on the agenda.

We heard from BDO forensic investigation and technology experts on the current role of technology and artificial intelligence (AI) in investigations, and they provided some practical steps to protect a company’s resources and reputation. Here are the key points from the session for in-house lawyers looking to navigate internal investigations.

Should you investigate?

  • Firstly; carefully consider whether to actually undertake the internal investigation and report. Once you have decided to proceed, clarify the scope and reason for your investigation.
  • Privilege rules for in-house lawyers may leave your internal communications to employees in investigations exposed without a “cloak” in court. For further information on privilege, see Legal professional privilege in internal investigations.
  • If you choose to appoint external advisors to assist you, consider their specific scope.

What to consider

  • Do you have a clear investigation plan that documents why you have made each of your decisions?
  • Does the plan consider all potential stakeholders and different cultural frameworks involved?
  • Question whether you want everything, including all employee interviews, in writing. What will be documented and helpful if later disclosed?
  • For damage limitation, anticipate media interest, and the risks of internal leaks to media, as well as the data access rights of those under investigation.
  • Different employees may need separate legal representation. It may be worth providing this.

Conflicts of interest

  • Seek independent investigators to report to: is the person you appoint to the investigation, and who you report to, independent from the company?
  • Consider any requests to report directly to an internal employee or director, and whether there are underlying conflicts, such as a relationship with others subject to the investigation. This could avoid compromising the investigation, the report, and you.

Technology is your friend

  • In-house lawyers polled on the range of ever-developing forensic technology were concerned about spending significant sums on software that could become quickly obsolete.
  • Effective use of forensic software for data analytics is now essential for electronic document searches and litigation, as the regulators and agencies increasingly rely on this software.
  • As the amount of data rises exponentially, documents received will be most quickly reviewed electronically for relevance and privilege.
  • The right AI software will use predictive coding on unstructured data, which is trained to discern relevance and eliminate irrelevant documents, in a relevancy coding exercise.
  • AI can spot unusual patterns within structured data in seconds, which the human eye may miss.
  • Consider forensic technology costs against time savings for largescale e-disclosure searches.
  • Standardisation of software and searches may be unhelpful.
  • Remember that the regulators are already using this kind of technology. If you are not using it in your investigations, they will be several steps ahead of you and have information about your company that you may lack, which is not where you want to be.

How to work

  • Consider the scope of your investigation: too narrow a search may undermine the work and leave your organisation open to criticism.
  • Consider who will see your reports: are they for the investigation or for litigation? Relevant data sets should be restricted to investigators or counsel, and be compliant with GDPR.
  • Conduct cost-benefit analyses regarding the risks of the investigation.

The overarching theme from the session was that in-house lawyers would welcome more guidance about e-disclosure technology options and the increasing role of AI in document review in internal investigations. Whether the investigation is related to internal reports of misconduct or fraud, or for regulatory requests or litigation, you will need technology on your side.

Miriam Kenner

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