The principles
  • Long gone are the days where an internal investigation merely involved the sweep of offices for notebooks, lever arch files and diaries to review in hard copy. The evolution from paper to computers, and our use of email as the main method of communication, has heralded exponential growth in the number of electronic documents that may be relevant to an investigation and may need to be disclosed within tight timeframes.

    For the purposes of an investigation, data review requires a tailored approach that takes advantage of the innovative technology that exists today. The key to the use of technology in an investigation is to allow you to get to the most important documents as quickly as possible. You no longer must perform a linear review of all the documents to find the key documents randomly scattered throughout. Some of the innovative solutions that are available and may assist on a wide range of investigations include:

    • AI compliance monitoring, which allows you to use artificial intelligence to identify the bad actors before they do something bad. It can also help you identify others that may have taken part in the issue at hand.

    • Communication analysis, which allows you to quickly see who was talking to whom at a key point in time. It can help you easily identify individuals that may have been involved and at whom you may need to take a closer look.

    • Understanding what communications are taking place outside of standard communication tools. Looking at media such as WhatsApp, Snapchat, Viber, Bloomberg Chat and text messages allows you see what people were discussing on a more casual platform.

    • Conceptual analysis, which allows you to quickly see the prevalent themes and concepts within your dataset. It enables you to quickly identify potential code words that may have been used and helps you determine which keywords might be relevant to the investigation.

    For large data sets that cannot be culled to a reasonable linear review size using other techniques, Continuous Active Learning (CAL) is a powerful way to locate key documents quickly. It is an iterative process of Technology Assisted Review (TAR) by which an algorithm is trained by reviewers to recognise similarity across the data set and apply similar coding decisions to the documents without the need for human review. The use of CAL/TAR has been in the judicial spotlight (see cases below).

    When deployed by an experienced team, the use of analytics and machine learning is considerably more accurate, cost effective and efficient than manual review. In our experience, technology-led approaches can result in cost savings of up to 87% when compared to traditional review at a document by document level.

Recent developments
    • On 06 August 2019, the SFO published the Corporate Cooperation Guidance for companies considering whether to self-report fraud or wrongdoing. In its Guidance, the SFO asks companies to go “above and beyond what the law requires” in order to be deemed “co-operative” - a designation that then entitles a company to (potentially) avoid prosecution or be offered the chance to enter DPA negotiations. Specifically, the Guidance provides a non-exhaustive, and certainly onerous, list of “good” practices that companies may be expected to take. One section of the Guidance sets out good practices in relation to preserving and providing material. Some of the more burdensome expectations include:
      • providing, in a useful and structured way, compilations of selected documents as requested by the SFO;

      • identifying material in the possession of third parties (and helping the SFO to get it);

      • providing material held abroad “where it is in the possession or under the control of the organisation”;

      • assisting in “identifying material that might reasonably be considered capable of assisting any accused or potential accused or undermining the case for the prosecution” (in other words, telling the SFO what material it will be required to disclose to the defence pursuant to s.3 of the Criminal Procedure and Investigations Act);

      • providing details of search terms, seed sets and methodologies applied to identify digital material; and

      • creating and maintaining audit trails of the acquisition and handling of both digital and hard copy materials, and identifying a person to provide a witness statement covering continuity.

           For a more detailed analysis on the Guidance, please see our article here.

    • On 1 January 2019, the pilot new disclosure scheme in the Business and Property Courts was launched. While this scheme is of course relevant to civil proceedings rather than investigations, it contains some interesting pointers as to the courts’ expectations relating to the use of TAR. Paragraph 9.6(3) of the Practice Direction states that parties must discuss the use of TAR when agreeing an approach to disclosure and the new draft form, the Disclosure Review Document, asks parties to explain why they are not using TAR in any case where the document universe exceeds 50,000 documents. The use of TAR is clearly expected to become the default in substantial cases.
    • The consensus in the industry is that regulatory authorities in the UK and US, as well as in other business and financial centres, are open to the use of TAR to identify documents relevant to an investigation.
Practical tips in an investigation
    • At the commencement of any investigation, potentially relevant documents must be preserved and identified. It is critical to involve your IT team at the outset to ensure that potentially relevant data is not destroyed automatically as part of normal business practices. Relevant data may be located in emails, on servers, in document management systems, on local drives, and on portable devices and mobile phones.

    • Collecting and refining this data for review in an investigation involves careful consideration of relevant custodians, date ranges and the use of analytics. It is important to keep a record of all processes that are carried out.

    • Hard copy documents should not be overlooked.

    • Where you are identifying documents for the purpose of engagement with or disclosure to authorities, consider being transparent and collaborative with authorities in your approach to the document review exercise. These discussions may limit any criticism of process, manage expectations and demonstrate cooperation with any regulatory investigation, particularly given that they should reduce time frames and increase accuracy.
International perspective
    • Consult your in-country legal team or, where appropriate, engage legal counsel advice before retrieving data from other jurisdictions (including data from servers located overseas) in order to avoid breaching foreign civil and criminal laws which might take a very different view on the collection of data for the purpose of an investigation in another jurisdiction.
Our expertise
    • Our innovative approach to the use of big data analytics was recognised in the Society for Worldwide Interbank Financial Telecommunication (SWIFT) Institute’s working paper “The Role of Big Data in Governance: a regulatory and legal perspective of analytics in global financial services” in December 2015.

    • At the outset of any investigation, we recommend consulting the Simmons & Simmons eDiscovery Solutions team of lawyers and technical consultants, who can provide expert guidance on data collection, data protection and security, and how to cost effectively utilise analytics and TAR to find the key documents more quickly.

    • Just over 10 years ago, Simmons & Simmons was the first organisation outside of the US to bring the market leading document review platform, Relativity, in-house. This has led to the continued development of our expertise in creating innovative solutions that are dynamic and customisable to each investigation. Our dynamic approach ensures that our workflow continues to evolve as we learn more about the data. This cannot be achieved through technical skills alone. It is the consultative experience and approach that our eDiscovery team brings to each matter that is truly unmatched in the UK legal market. We continue to push the boundaries of analytics, artificial intelligence and TAR with every single case we work on.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.