Knock, knock, it's the government calling! Are you prepared?
Government investigations can be complex, with multiple agencies involved. Preparation is key.
There is an uptick in regulatory enforcement activities in matters spanning a broad set of issues, including antitrust, false claims, securities fraud, export enforcement, and workplace safety, just to name a few. At present, the number of federal authorities allowed to issue subpoenas sits well over 300, and the number of whistleblower complaints filed with government agencies continues to increase considerably.
Being issued a government subpoena or document request is a stressful burden for any corporate legal department. This is all the more true when multiple agencies in parallel separately issue subpoenas and requests — a not uncommon occurrence. Regardless of the issue or federal agency in question, it is important that corporate legal departments be prepared to effectively negotiate the scope of any request and then quickly identify and produce relevant documents.
Effective data preservation is of primary importance in being able to respond effectively to government requests. Having documented data deletion policies and protocols, ensuring document chain of custody, systematic handling of data for departing employees, and integration of any acquired entities’ data sources are all crucial components in having the necessary data ready for answering government document requests. And depending on the industry and types of data housed within a corporation, an 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.
The right technology for the job
From a technology perspective, it is also critical to have the ability to quickly and comprehensively process not only textual data like emails, documents, spreadsheets, and presentations, but also other media sources that may contain potentially relevant information, such as audio/video files, mobile texts, and any content from encrypted devices and files. For larger, complex investigations requiring some level of technology-assisted culling or review, government agencies will likely insist on documentation and demonstration of a defensible process that outputs results with sufficient accuracy.
When subpoenas and requests are issued, corporate legal departments 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 needing to be reviewed, and reliable technology available for systematically reviewing and analyzing these files.
With these resources in place, corporate legal teams will be more able to quickly produce relevant documents to government authorities, while gaining a comprehensive understanding of the issues in question and the potential risk facing the enterprise.
To learn more about corporate investigations, read the findings from a recent survey of in-house legal and compliance professionals conducted by H5 and Above the Law: THE INVESTIGATIONS LANDSCAPE: FINDINGS FROM THE H5 2019 CORPORATE INVESTIGATIONS SURVEY. You may download it here.