This article was originally published in Corporate Compliance Insights on July 17, 2018

Internal/Regulatory Investigations Versus Litigation

Too many corporations approach litigation and compliance investigations the same way, using the same technology, approach and people. But your approach to managing electronic information in internal and regulatory compliance investigations should differ from the one for litigation.

Most of the discussion surrounding compliance investigations focuses on best practices for planning and conducting personnel interviews. This article addresses document review, specifically electronic document review, an equally critical component of the investigation process directed at finding what some refer to as the “truth serum” for controlling those interviews and structuring much of the investigation.

The approach to reviewing documents for an internal or regulatory investigation differs significantly from that in a typical litigation production context. Recognizing this difference and the unique challenges presented by a compliance investigation is the key to designing an efficient and effective document review protocol.

This article, the first in a two-part series, will outline those differences and challenges and present several techniques for getting the most from a document review in an investigation context.

Sometimes, however, documents themselves are the subject of the investigation, as, for example, in responding to a civil investigative demand. The next article will present a document review protocol for “proving a negative” – that is, demonstrating to a requesting authority that there simply are no responsive documents, to a reasonable statistical certainty.

In either situation, developing an effective document review protocol begins with recognizing the critical distinctions between a document review for an investigation and a review for production in litigation.

How does an investigation review differ from a production review?

The objective of a typical litigation review is to proceed, from a reasonably known set of facts, to locate most of the documents relating to the dispute, with the least amount of review effort. The emphasis is on document review, primarily to present the best documents for review, and determine whether those documents relate to the underlying fact pattern. To that end, a litigation review is loosely designed to develop a model of positive, or relevant, documents and find most of the similar documents quickly, to the exclusion of other documents.

In an investigation, those facts are either not known or not well developed. As a result, an investigation review is crafted to quickly find pertinent documents that will establish that fact pattern. It is not necessary to locate all, or even most, of the documents that may ultimately be relevant to the ultimate fact pattern. It is most important to be certain that the critical documents are available for review and to locate those documents quickly. An investigation is an effort to find the pieces of a puzzle and put them together to define a cohesive fact pattern.

Given this difference in objectives, there are several steps that can be taken to refine and implement a document review protocol directed to achieving the objectives underlying a compliance investigation.

Maximize the value of legal hold and collection capabilities.

In the early stages of an investigation, very little is typically known about the players or the underlying story. An investigation typically starts with some manner of complaint, which can be verbal or written and contain varying levels of details. The complaint typically leads to the identification of some limited number of potential document custodians who are likely to have at least some level of knowledge of the facts surrounding the complaint. It is critical to quickly leverage the knowledge of those known custodians to expand the scope of the investigation.

Integrated legal hold and collection tools often offer the opportunity to quickly and easily elicit information from those custodians and simultaneously collect documents for review. Automated legal hold tools typically include the ability to issue a questionnaire to known custodians. In the investigation context, these questionnaires can be structured to quickly and efficiently elicit substantive information about the complaint from all of the known document custodians at the same time their documents are being collected. That information can then be used to scope and focus the document review even before the custodians can be interviewed.

Use communication analytics to locate additional witnesses.

The success of a compliance investigation depends on the ability to quickly identify key witnesses and document custodians in order to promptly develop the fact pattern as completely as possible. Including witness identification as a specific component of the document review process will provide exponential returns. The identification of more witnesses will lead to the collection of more documents, which will in turn lead to the identification of more witnesses.

With the information obtained from the legal hold questionnaires and ongoing interviews, state-of-the-art communication analytics can expedite identification through the document review process. And there are several levels of communication analytics that should be used in tandem. Top-level analytics typically provides a macroscopic view of the entire social network of communications across a document population. Once critical individuals have been identified through the social network overview, the analysis can focus on their individual communication patterns. Then, using analytics to drill even deeper into the communications between specific individuals, the document review process can quickly uncover witnesses that can be integrated into the interview and document collection process. In turn, these new witnesses will similarly provide additional insight into others, ensuring a comprehensive investigation.

Use efficient, technology-assisted review techniques.

Technology-assisted review (TAR) is widely recognized as a valuable and effective approach to document review in the litigation context. Implemented properly, TAR can be an equally effective means of locating critical documents during the course of a compliance investigation.

Given the differences in a litigation review and an investigation review, it is important to choose an effective TAR protocol. Some TAR tools require the entire document collection to be available at the outset and then require substantial training to develop their models before review can begin in earnest. While that may be effective in a litigation review, the exigencies of a compliance investigation require review to start at the earliest possible moment – well before all of the documents have been collected.

TAR tools that use true continuous active learning (CAL) protocols avoid this initial delay. Actual document review can begin with the very first document. And the operation of CAL, which uses every review decision to improve the algorithm, will 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 on the basis of all the current training. This immediate, prioritized approach to review makes continuous active learning particularly suitable for compliance investigations.

Another benefit of continuous active learning is the ability to initiate training with virtually anything. Since little is often known at the outset of a compliance investigation, it can be difficult to quickly locate truly pertinent documents that can be used to train a TAR tool. With CAL, training can start with a single, synthetic seed – a document created from whole cloth that encompasses all of the known concepts that would make a document relevant to the investigation. CAL will immediately recognize the words and phrases that underlie those concepts and prioritize similar documents for review – getting to the relevant documents quickly without even knowing where to really start.

To make the most efficient use of an appropriately sophisticated TAR tool, the document review can and should be segregated into multiple simultaneous lines of inquiry. For example, there may be several witnesses scheduled for successive interviews in a very tight window. In order to be optimally efficient, the document review should be structured to permit separate and simultaneous reviews directed at preparing for each interview independently. With that review protocol, it is imperative that the TAR tool (1) permits simultaneous, independent review projects and (2) uses all of the review decisions to train the algorithm, regardless of the project in which those decisions are made.

This type of approach can be critical, especially in bilingual investigations that utilize separate review teams for each language but require prioritization for review without regard to which language appears in the documents.

Make sure to effectively explore the unknown.

A nagging concern in reviewing documents – especially in a compliance investigation where the knowledge boundaries are blurred and ever-expanding – is how to be comfortable that there is nothing in the document population that is pertinent but unknown. When a document review focuses purely on what is perceived to be within the current scope of the inquiry, there is a very real possibility that potentially relevant documents that will help to define the full fact pattern will be missed.

Certainly, advanced analytics can be used in an effort to ferret out those unknown facts and documents. But that can be a very painstaking and time-consuming undertaking. And most compliance investigations simply do not have the luxury of time.

To solve this problem, many modern TAR tools include functionality that is directed at locating documents that are contextually diverse from everything that is known to that point in time. Contextually diverse documents obviously may or may not be relevant to the investigation, but 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) misses critical issues that are unknown at the outset.

What if there are no relevant documents?

Using these techniques and taking maximum advantage of appropriate technologies will ensure an efficient, effective, thorough document review in the compliance investigation context, with commensurate results. Sometimes, however, there simply are no documents to be found. When documents are the object of the investigation, as in governmental and regulatory investigations, that conceivably means reviewing the entire document population just to come up empty-handed. The next article will discuss the techniques and technologies that can be used to short circuit that review process and still demonstrate that there are no documents in the collection, essentially “proving a negative” without reviewing the entire collection.