In 2013, the director of e-discovery for the Civil Division of the United States Department of Justice (DOJ) acknowledged that “electronic evidence plays a tremendous role in investigations.” These words have become even more powerful today. Here, we provide some basic guiding principles for attorneys as they counsel clients regarding the processing and production of electronically stored information (ESI) in response to government-led investigations.
1. Vendor Selection
There are several service providers that have e-discovery service offerings, such as data collection, databases, and document-review tools. In many matters, decisions are driven by cost and budget. But there is more than price to evaluate when choosing the most suitable service provider. Some things to consider:
- A firm’s data-collection capabilities
- Search/review capabilities
- Multi-matter management and processing capabilities (including the ability to process and render searchable PDFs, emails, TIFFs and other nonstandard file types)
- Production capabilities (including privilege-log generation)
- Industry reputation
2. Litigation Holds/Preservation Notices
When a company learns that they are the subject of an investigation, either formal or informal, it is advisable to issue a litigation hold and preservation notice.
Federal law provides severe criminal penalties for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation … within any matter within the jurisdiction of any department or agency of the United States.” 18 U.S.C. § 1519.
The DOJ is very serious about prosecuting cases where spoliation may have occurred, so it is vital that attorneys take extra precaution to have their clients preserve ESI as soon as they believe that their clients have become subjects of investigations, no matter how preliminary. Clients need to remember to make sure that policies such as short-term document preservation be suspended.
3. Searches in ESI Databases
U.S. District Court Judge Andrew J. Peck observed, “In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of ‘Go Fish.’ ” Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y. 2012).
This very insightful observation succinctly sums up the limitations of strictly relying on search terms to identify responsive documents in a document management database. This limitation is why service providers use predictive coding and technology-assisted review (TAR) in the document review process. Lawyers conducting searches of ESI need to appreciate that there might be potential gaps in searches, as well as in the precision and recall of search tools. Unreliable searches may damage the trust they have developed with the investigating government attorneys and make collaboration with the DOJ more difficult.
In February 2014, the DOJ’s Antitrust Division published a Model Second Request, which was specifically designed to help responding attorneys “recognize that they use words/phrases differently from most document custodians and that the responding attorneys are ill-equipped to select search terms.”
This is instructive for attorneys who are contemplating using keyword searches in response to government investigations. The Model Second Request provides among other items, these directives:
“If search terms will be used, in whole or in part, to identify documents and information that are responsive to this Request, provide the following: (1) a list of the proposed search terms; (2) a word dictionary or tally list of all the terms that appear in the collection and the frequency with which the terms appear in the collection (both the total number of appearances and the number of documents in which each word appears); (3) a glossary of industry and company terminology (including any code words related to the Transaction); (4) a description of the search methodology (including the planned use of stem searches and combination [or Boolean] searches); and (5) a description of the applications that will be used to execute the search. The Department strongly recommends that the company provides these items prior to conducting its collection of potentially responsive information and consults with the Department to avoid omissions that would cause the company’s response to be deemed deficient.”
Aside from outlining and reiterating the deficiencies and pitfalls of keyword searches, this request indicates that conferring with government attorneys about search terms before conducting searches may save the responding clients and their attorneys time and money. As in any investigation or litigation, early collaboration and discussions between both parties will prevent lost time and having to redo work by the attorneys.
4. Quality Assurance in Production Sets Sent to the DOJ
Quality control (QC) in the production of documents as part of a government investigation is the most critical step in the e-discovery process. Second- and even third-level QC review of documents is a necessity when responding to a DOJ subpoena or other request for documents, most of the time with a keen eye toward privilege in addition to QC’ing the documents’ responsiveness. The double- and triple-checking should not just stop there. Once a set of reviewed and QC’d documents are deemed ready for production to the government, it is best to take one more QC pass through, as the DOJ is not particularly amenable to clawback agreements, where you learn post-production that you inadvertently sent the government a privileged email or other document.
5. Other Considerations
The world of e-discovery can be a complicated and overwhelming environment. This information and guidance is only meant to provide a broad overview of a few of the most important concepts for attorneys who are counseling clients in response to government investigations involving e-discovery. Other issues you should consider:
- Budgeting appropriately
- Creating a succinct, comprehensible, effective and defensible document-review protocol
- Retaining contract document reviewers or using a form of TAR for first-level review
- Assembling a higher-level review team
- Liaising early and collaborating with the DOJ attorneys and maintaining open lines of communication
- Keeping an eye toward potential litigation and letting that inform your strategy
- Evaluating the benefits and place for the use of technology
Published September 28, 2016.