Modern electronically stored information (ESI) investigations are critically important and intensely demanding. Timely, cooperative self-reporting plays a central role in today’s heightened global regulatory environment and can obviate a sweeping agency investigation that would otherwise divert or exhaust valuable company time and resources. Finding the facts early might well mean the difference between a fully informed, favorable settlement and an overly expensive and protracted litigation.
But shrinking timelines, stretched resources and ESI data proliferation make it increasingly difficult for investigation teams to zero in on the key facts in a timely, efficient and cost-effective manner.
Here are five key strategies employed by professional investigation teams--data whisperers--to uncover the facts when faced with high-stakes, time sensitive investigations.
1. Preserve and collect expansively
Expansive collection is the best way to ensure that the team uncovers the true story. While this may seem to run counter to expediency, ensuring fulsome collection at the beginning of an investigation reduces risk of overlooking the key evidence that tells the story and ultimately saves time associated with multiple piece-meal collections. Don’t worry about the initial volume of data collected, as we will discuss below; data whisperers know how to implement processes and leverage technology to avoid review of extraneous data.
2. Optimize the process from start to finish leveraging the cloud
Optimizing time to results means looking at the entirety of the investigation process and taking advantage of every opportunity to improve and expedite workflow. To expedite the collection process, there should be a direct (and battle tested) line of communication between the investigation team and the collection expert, and a predefined, seamless pipeline to move collected data into a hosted environment to ensure prompt availability of ESI for review.
Cloud-based platforms are particularly well suited to investigations as they provide ease of use and remote access wherever the investigation team is located. Additionally, when the investigation team is well versed in the cloud-based analytics platform, they can begin their analysis almost as soon as the data is collected. No time is wasted in arranging for, training or coordinating with disparate providers, or coming up to speed on the most efficient and effective way to locate the documents necessary to respond to the information needs underlying the investigation.
3. Use communication analytics to locate additional witnesses
Advanced communication analytics provide investigators with a macroscopic view of the entire social network of communication and help identify critical individuals and focus on their individual communication patterns. Analytics that drill even deeper into the communications between specific individuals also quickly uncover witnesses that can be integrated in the interview and document collection process, ensuring a comprehensive investigation.
4. Review selectively yet thoroughly
One of the keys to rapidly locating critical documents amongst the data collected is selecting the appropriate technology-assisted review (TAR) protocol – one that uses continuous active learning (CAL) and applies an algorithm specifically designed to ferret out documents amongst diverse pockets of contextual relevance.
Continuous active learning uses every review decision to improve the algorithm and prioritize the best documents for the earliest review. As documents are added to the review, continuous active learning tools will incorporate them into the collection. This immediate, prioritized approach to review makes continuous active learning particularly suitable for investigations.
TAR based on CAL can also ensure that all pockets of the dataset are explored by bringing forward documents that are contextually diverse from everything that is known to that point in time. The more contextually diverse documents that are seen over the course of the review, the less likely that the review and, in turn, the investigation, will miss critical issues that are unknown at the outset.
5. If you can’t find relevant documents, prove a negative
Sometimes, there simply are no documents to be found in a document collection. When documents are the object of the investigation, as in governmental and regulatory investigations, that means reviewing the entire document population only to come up empty-handed. Leveraging CAL to establish that there are no relevant documents amongst a contextually diverse sample of the data offers a reasonable and defensible way to demonstrate the absence of responsive documents in a collection without having to review the entire collection.
Successful ESI Investigations
Today, every ESI investigation is intensely demanding, with new complexities brought on by the proliferation of a remote workforce and devices. These challenges necessitate the need for proactive, careful, streamlined coordination of every component of the investigation, beginning at the earliest stage of the process. Employing the strategies described above will help your team minimize risk and maintain control.
To learn more, visit The Recon Investigations service webpage.
Published April 12, 2021.