Blog | April 28, 2023
Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Investigations
In our first post in this series, we discussed how eDiscovery technology and workflows are being applied to several different use cases today. According to eDiscovery Today’s 2023 State of the Industry Report, at least 40% of the 410 survey respondents report applying eDiscovery workflows to seven different use cases.
One of those use cases is investigations, for which eDiscovery is used by over four out of five (83.2%) of respondents – the second highest use behind only litigation. In this post, we’ll discuss types of investigations, how investigations differ from litigation, how eDiscovery technology and workflows are applied to investigations and what you need to know to effectively conduct eDiscovery to support investigations.
Types of Investigations
Not all investigations are the same. Here are examples of the types of investigations to which eDiscovery technology and workflows can be applied:
- Internal Investigations: As the name implies, these investigations are managed and coordinated internally. Examples of internal investigations include:
- Employee theft or misappropriation of company property.
- Harassment and/or discrimination.
- Theft of trade secrets or other intellectual property.
- Regulatory Investigations: Can include investigations into compliance with rules or laws, inquiries into financial issues, whistleblower allegations or the review of conduct within the company or third parties.
- Incident Response: These investigations are in response to cybersecurity incidents to determine the extent of the incident and the data impacted so that affected customers and individuals can be notified.
- Due Diligence: These investigations are conducted on a company’s internal processes to support a business objective, such as an audit or an HSR Second Request.
It should also be noted that many investigations conducted lead to litigation. So, the application of eDiscovery technology is key to not only effectively conducting the investigation, but also to preserve data and findings from that investigation to be used during the litigation.
How eDiscovery Applies Differently to Investigations There are several ways in which the process of eDiscovery for investigations differs from that of litigation, including:
- Purpose: Unlike litigation, where the purpose of eDiscovery is to produce ESI to an opposing party and present it in evidentiary proceedings, eDiscovery for investigations is typically conducted internally by a company or in response to a regulator to uncover potential wrongdoing, compliance violations, or prepare for anticipated litigation, for example.
- Scope: In investigations, the scope of eDiscovery may be more flexible than litigation (where the scope is defined by specific rules and procedures, such as the Federal Rules of Civil Procedure), as it is often guided by the specific goals of the investigation or the requirements of a regulatory agency.
- Timeline: Those specific rules and procedures also enforce a structured timeline for litigation, whereas the timeline for an investigation may be more fluid and geared toward an initial assessment of an issue and dependent on the urgency of the matter.
- Parties Involved: eDiscovery is typically handled internally whereas eDiscovery for litigation is usually conducted by multiple parties, including opposing parties and (sometimes) non-parties.
- Custodial Participation: eDiscovery for litigation typically involves the communication of legal holds to key custodians and custodial interviews to identify potentially responsive ESI. For investigations, some of the custodians are often the individuals being investigated, so the placing of their data on hold and the access to that data may be conducted without their involvement or knowledge.
Applying eDiscovery Technology to Investigations
There are several ways in which eDiscovery technology can be applied to facilitate investigations. Here are some of the technology applications to support investigations:
- Communication Analysis: One key to many investigations is the ability to identify communication patterns with individuals being investigated. The ability to apply communication analysis to those individuals is key to identifying other parties who may need to be investigated (or interviewed). It can also identify if the individuals being investigated are communicating with their personal email address, which can be a potential sign of intellectual property theft.
- Concept Searching: As ESI relevant to the investigation is identified, concept searching enables similar ESI to be quickly identified, which can streamline the process of finding key evidence to support the investigation.
- Fact Management: The ability to organize facts and issues associated with the investigation and quickly tie key documents to those facts and issues enables investigators to build the case more quickly and comprehensively.
- Language Detection: The ability to apply language detection techniques to identify code words or phrases that may illustrate everything from accounting fraud to sexual harassment and discrimination.
- Predictive Coding: In large-scale investigations (including regulatory investigations), the ability to apply predictive coding algorithms to streamline review can be key to completing the investigation in a timely manner.
- Silent Holds: The ability to apply legal holds in place (for enterprise applications that support them) is key to preserving ESI for eDiscovery. For investigations, the ability to apply “silent holds” where the custodian isn’t notified that a hold has been applied to their data is key to being able to conduct an investigation without being detected.
- Foreign Language Translation: Sometimes, the ESI to be investigated may exist in a foreign language, so the ability to identify, extract and translate that ESI may be vital to collecting the facts needed to complete the investigation.
The application of eDiscovery technology and workflows to investigations is hugely popular for a great reason – any investigatory process involving ESI can benefit from eDiscovery! Just about all eDiscovery use cases – whether they’re considered “investigations” or not – involve some level of investigation. It’s important to understand how to leverage eDiscovery workflows, best practices, and technology to achieve the goals of the investigation!
For more regarding Cimplifi eDiscovery, litigation, and investigations services, click here.