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Document Review for FCPA Investigations: A Better Way

Companies or firms facing action under the Foreign Corrupt Practices Act (FCPA) must surmount a number of obstacles in order to review documents to determine if an alleged offence has occurred. Since most cases cross one or more borders, the cost conducting international or anti-bribery investigations can be significant.  Broad discovery demands by regulators and a substantial investment to quickly comply in the hope of ultimately avoiding indictment or trial just adds to the price tag. Costs can quickly mount if similar concerns arise in other countries.

FCPA investigations document reviewThe primary challenge with FCPA investigations is usually data privacy and similar laws that place significant restrictions on the transfer of files outside of the country or countries where the company is located or the alleged acts took place.  In many cases the only option is to conduct the review where the custodial data resides, which requires either local or mobile capabilities for processing and reviewing the data. Often, however, local capabilities and facilities are not readily available or their use is not feasible. The pursuit of a mobile solution can be a large undertaking that involves identifying an in-country location for review, deployment of technology platforms and administrators, and establishment of a review team—all while the clock is ticking. Even when these logistics are conquered, the review of thousands or millions of documents can take a painstakingly long time to complete through traditional means.

Another factor that adds complexity to FCPA document reviews is that the documents that can prove or disprove the allegations are usually few, so the yield of relevant information from the full set of collected documents will be small – often very small.

Notably, with a traditional linear review of document batches, relevant information will only surface as it is encountered, which could occur at any point in the review—at the beginning, middle or end.  Review of the vast majority of documents will be a waste of time and money. That’s why this approach is inefficient and costly, flying in the face of counsel’s need to quickly know what happened so they can expeditiously resolve the matter.

Finally, in many instances, a significant portion of the document population may be in one or more non-English languages, which can complicate the goal of quickly identifying documents that matter. The traditional approach used to address this situation is to bring in a large number of native-language document reviewers to conduct a linear review of the full set of these documents, but this solution is not tuned to the unique demands of these investigations.

Instead of linear review, what’s called for is an approach that uses search to more quickly and directly assess the relevant data. Leading e-discovery firms have the capability to deploy experts and cutting-edge tools to locations around the world and conduct such in-country document search efforts. Using specialized and sophisticated techniques that are more effective and less costly than traditional document review methods, these specialized e-discovery firms are able to quickly and defensibly find the documents that matter by: 1) reducing the document population, 2) conducting content-based search for key information, and 3) executing feature-based search to ensure the widest possible coverage of the data.

Here’s how the search approach works. First, the document population is reduced by filtering out patently irrelevant documents (e.g., news articles, press releases, public documents) and removing duplicative information using advanced forms of de-duplication and e-mail chain analysis. This leaves a refined review population that is largely a collection of single instances of potentially relevant information.  If foreign language documents are involved, experts can identify and defensibly reduce that portion of the population via foreign language keywords, which can be used to flow foreign language documents to a separate document review stream.

Next, through knowledge acquired in working with counsel, experts can segment search topics into their constituent elements to ensure that searches comprehensively cover the issues, entities, and activities that matter. The experts conduct targeted content-based searches to quickly identify documents of interest using advanced search tools that are optimized for search, not linear document review.

At the same time, feature-based searches are leveraged to help uncover discussions of interest that might avoid detection through strictly topic-based means. These include emotional content filters that surface documents with strong language or that express concern, stress, fear, secrecy, or even attempts to conceal information. Searches are also informed by analysis of social networks (isolating e-mails sent to one or very few correspondents which tend to be less formal and unvarnished) along with key people, entities, and dates to ensure coverage of the search topics.

As the targeted results are delivered to counsel, the experts solicit feedback and can change course quickly as new information is discovered. This approach is cost-effective – but more importantly is aligned with counsel’s need to identify what happened as quickly as possible, bringing order and control to an otherwise inefficient and burdensome FCPA investigation process.

FCPA investigations: Find the documents that matter


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