eDiscovery for Investigations: Different Goal, Different Approach.
Looking for key documents is a very different exercise than looking for responsive documents. Here’s why.
With workplace and regulatory investigations on the rise, leveraging eDiscovery technologies is no longer exclusively a litigation-specific endeavor. Increased scrutiny relating to antitrust, false claims, and securities fraud — in addition to heightened public and investor concerns regarding “#metoo” scandals and personal data breaches — have increased the number of investigations companies need to deal with on an ongoing basis.
While eDiscovery workflows, both TAR and linear, for a litigation production focus on systematically classifying documents based on discovery requests, investigations focus on story development in a more open-ended context, usually requiring a search for key documents. As such, the principles and criteria guiding the management of investigations differ from those guiding a responsive review.
For example, rather than leveraging quantitative metrics like precision and recall to track progress and success in finding responsive documents, investigations are largely driven by qualitative assessments of what is being uncovered on an ongoing basis. Are discovered documents leading to more information about the story? Moreover, planning and budgeting often plays out quite differently in reviews for production when compared to investigations. While reviews for production tend to benefit from a longer timeline and formal planning process, investigations, which require identification of key documents, often have to be budgeted and resourced in a reactive and iterative fashion since you don’t really know the full extent of the need until you have begun the exploration.
What this means in practice is that investigations require nimble eDiscovery personnel and an adaptable eDiscovery infrastructure that can quickly scale up or down depending on the ever-evolving needs of an investigation. In addition to agility, there are also specific eDiscovery data and technical complexities to keep in mind when conducting investigations.
Investigations, more so than reviews for production, require pulling from a diversity of sources beyond emails, documents, spreadsheets, and presentations, including cell phone data, online chats, audio/video files, and content from encrypted devices and files. From a processing standpoint, it is important to have the right technology in place in order to quickly and comprehensively address these various types of data.
Depending on the industry and types of data involved with an investigation, the ability to adhere to a variety of new data privacy regulations, such as the EU General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), and Biometric Information Privacy Act (BIPA), is key. Technically, an important aspect of this is having the ability to accurately identify personal information (e.g., names, contact information, social security numbers) and dispose of it appropriately based on the data compliance regime you are subject to.
Linear review is seldom an ideal option for investigations where the need to quickly pinpoint key facts residing in large unstructured data sets requires an aggressive approach to isolating and prioritizing the sets of documents most likely to have useful information. Using clustering techniques early on can help you get the lay of the land, and document classification tools can also be leveraged early on to identify structured reports like board minutes and quarterly business reports. And with email data specifically, threading and thread viewers can help you make sense of email communications more quickly and efficiently.
More generally, legal teams are best situated when they can focus on the substance of the issues under investigation — knowing the who, what, when, where, and why. This requires having data infrastructure and tools in place for quick access across the diverse set of files that need to be reviewed, and reliable technology and staff available for systematically reviewing and analyzing these files. Whether these resources are situated in-house or procured through a managed service model, once in place and at the ready, legal teams will be enabled to gain a comprehensive understanding of the issues in question and the risk at play with respect to the investigation at hand.