Better Safe Than Sorry: 10 Ways to Prepare for Government Investigations
Over the last several years, the U.S. federal government has ramped up its resources and staffing, allowing for more in-depth and frequent corporate government investigations. Many legal professionals who work in the corporate world have either undergone a government investigation, or have been a bystander watching another company go through the sometimes painful process. Whether your company is large or small, public or private, never assume that it will “fly under the radar,” as no one is immune to an investigation. Furthermore, your response in the hours and days following an investigation inquiry strongly impacts the eventual outcome. It is always better to be safe than sorry. Here are 10 ways to be proactive and prepared if your company becomes involved in a government investigation.
1. Establish an investigation protocol now
Have an investigation plan in place, and the sooner the better. Outline the steps and workflow, as well as protocols and procedures that help identify relevant information. Confirm that your document retention and deletion policies are in place and are being adhered to across all departments, especially in IT. Employ a legal hold and notification tool to ensure that all employees understand what is taking place and that they must preserve and retain relevant documents and data, until further notification. Finally, identify a point person or team that is prepared to deal with a potential investigation. This team should draw on expertise from multiple departments including Legal, HR, IT, and C-Suite personnel.
2. Communicate to your team and the public
Share with your staff any pertinent details that are part of the government investigation. Make sure they understand their roles, all requests, deadlines and related company policies. In conjunction with your internal communications, prepare a public response and crisis management plan, if necessary.
3. Protect privileges
Certain communications are protected from disclosure under the attorney-client privilege and work product doctrine. Make sure you speak with your legal counsel and e-discovery expert team before disclosing certain communications in order to avoid waving these privileges. It is important to communicate all potentially privileged materials to these agents to prevent the mishandling of sensitive information. Additionally, most information created in response to or in preparation of an investigation falls under the work product doctrine.
4. Review all information requests
Most of the time, government investigation requests can be very broad. It is important to take the time to read and analyze each request making sure you identify documents that specifically apply, rather than handing over information that is neither relevant nor requested. Pay close attention as these requests will often include the types of data required and detail any limitations on the scope of the investigation. Don’t forget that some requests may ask for information the company deems a trade secret or confidential financial information. Be sure to weigh the option to produce this information or not. In the event the company is willing to produce this information, the company may request that the records be exempt from public access via Request for FOIA Exemption under 5 U.S.C. § 552(b)(4).
5. Identify data sources and custodians
To efficiently and completely comply with the government’s request, in other words, to give them what they want without complication, you have to know where your data is throughout your organization. This prevents the unintended destruction of information and makes investigation compliance easy. To do this, identify custodians, or those who have potentially relevant information, outline where information is stored (external hard drive, cloud, device storage, text, voicemail, etc.) and contact third parties who may help you manage data collection and storage. This is where a legal hold and notification tool as referenced above prove invaluable.
6. Follow production guidelines and collect data
Before you begin gathering the data you have identified, make sure you pay close attention to the preferred or required production format. This will save you a lot of time and energy in the end. Once your relevant sources of data have been determined, begin the collection process. As you collect all required documentation, take care to track and document the collection of data and time stamp everything. Know what you are handing over and why you are doing it, this will help you defend the validity of the document if should it ever be in question.
7. Analyze data
Prior to information submittal, you must determine the terms and scope of the investigation and then analyze the collected data to ensure what you are handing over is in-line and accurate with the request. In the event there are millions of records, technology tools can help sort and analyze all imported data with real-time analytics. This helps you identify key players, connections, clients, date ranges, and geographical areas, thus allowing you dial-in on the information important to the investigation in minutes.
8. Review all documentation and data
After the data has been collected and analyzed, it is time to start reviewing and labeling the documents based upon what is responsive to the various review requests. It’s also important to continue monitoring for privileged documents and marking those as such to prevent inadvertently sending those out the door. Keep in mind that you may raise objections to requests and there may be a proportionality argument depending on the volume of information to be reviewed under the request.
9. Produce and track all submitted data and information
As you produce and submit all documentation related to the investigation, it is a prudent to keep a running inventory of all materials in the hands of the government. Always make a copy of the records and data prior to the production.
10, Hire an expert team to make the entire process streamline and stress-free
Government investigations can be overwhelming, and many companies do not have the capacity to coordinate proper data collection, analysis and oversight. Hiring a third party e-discovery team can make this process much easier and as stress-free as possible. Many e-discovery professionals specialize in corporate level government inquiries, helping companies large and small get through an investigation efficiently. Engage assistance early so there is a coordinated effort between your experts, internal and external counsel, and stakeholders within the company. Savings happen early on with discovery and there is significant value in being able to craft a technical response when you need to request rolling productions or make an argument regarding overly broad requests. You never know when the government is going to come knocking at your door. The key to a thorough, accurate and successful production of evidence is being ready for that unexpected situation. Advanced preparation, in combination with utilizing experts in legal workflow, software, and analytics, can help you get there. Aaron Vick is Chief Strategy Officer for Cicayda, a leading legal technology firm that combines powerful cloud-based eDiscovery and Legal Hold software with analytics and legal expertise. Early in his career, Aaron was part of the Rocket Science team that designed the first document research product, CaseLogistix, for the legal discovery market. After CaseLogistix’s acquisition by Thomson Reuters, Aaron played an integral part in developing its Litigation Product Specialists team.