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Managing Pre-Litigation Investigations for the Best Results

Nov 14, 2019

Long before the parties to litigation start formal discovery, an internal investigation is a beneficial way for a party and their counsel to: learn the party’s information ecosystem, identify sources of potentially relevant information and examine these sources via sampling. Although a litigant may not be required to produce the information found, it is crucial that pre-litigation investigation be handled appropriately to ensure it is accurate, comprehensive and that data be preserved for potential future use. A recent panel discussion on Running Pre-Litigation Investigations at the Women in eDiscovery Southern California Tech Conference shared insights and tips addressing some of the key issues for companies and law firms:

Data sources. One of the first challenges in any review is identifying where relevant data is located. This can be a surprisingly complex issue considering the proliferation of storage devices and cloud access and the numerous custodians who may be in control of the data.

Information types may include hard copy documents, electronically stored documents (on physical media, mobile devices and in the cloud), electronic communications (e.g., emails, texts, chat messages, etc.), and publicly available documents (e.g., SEC filings, Government records, etc.). Data which can be manipulated or analyzed (e.g., sales and financial records, time and pay data, etc.) also must be gathered as potential evidence.

The custodians may encompass a wide variety of individuals including IT, Human Resources, Accounting, Payroll, Marketing, Operations, and individuals who may have personal files, notes and devices. Talking with custodians should be done early in the process in order to determine what may exist and who else may hold data. Ideally, attorneys should work closely with eDiscovery service providers in deciding who to question, what to ask and who should conduct interviews with custodians.

Collection. While information collected may never be needed for litigation, it should always be handled in a forensically defensible manner in case it is required in the future. A proper chain of custody is essential. Metadata should be collected specifying when, where and who collected and preserved the information. It also must be preserved by immediately making a forensic copy of the information. The copy can then be used for working purposes while the original is maintained exactly as it was when collected. Care must also be taken to avoid problems during data transfers including potential exposure to data breaches, malware/viruses, and unauthorized exposure to government data-gathering programs.

During collection, it is important that the service provider also look for anomalies or mishandling of data, which may indicate the existence of missing information or involvement of other custodians.

Investigation and analysis. eDiscovery service providers have forensic technology tools to analyze the data for investigation purposes. It is essential that counsel work closely with the service provider. In order to select the right technology tools and conduct the most effective analysis, the provider should understand the allegations, the type of information that is being sought and the purpose of the investigation. For example, if the intent is to submit information to a government entity, then there may be special compliance requirements. A report to the board of directors will focus on paring down and condensing critical documents.

A review for investigation purposes will be handled differently than a traditional document review in preparation for production and that should be a consideration in choosing a service provider. Before selecting a provider, it is essential to do your due diligence. Look for a provider you can trust with the expertise and client-centric approach needed for your project. Contact CDS for a consultation to discuss your matter.

About the Author

Nicole Guyer

Nicole Guyer

As Client Director at CDS, Nicole advises attorneys and ediscovery practitioners on managing electronic data through the EDRM lifecycle. She is passionate about developing sophisticated workflows and takes a hands-on consultative approach. She draws on more than a decade of eDiscovery experience to advise clients on advanced analytics and litigation support technologies to efficiently investigate data, cull data volumes and implement cost-saving solutions. Nicole has also managed large-scale document review projects and assisted with privilege reviews and privilege log creation. She is a Relativity Certified Administrator.