A Legalweek West session looks at how to navigate the disparate e-discovery guidelines of investigatory agencies and the biggest challenges companies will  face.

Armed with new technologies, regulators are getting more skilled at pinpointing corporate high-risk behavior and potential infractions. But with the right amount of preparation and compliance tools, companies can position themselves to weather any investigation. Within limit, that is.

The exact demands of the investigations, after all, can vary greatly depending on the investigatory agency and the type of action at hand. And nowhere is more apparent than in the area of e-discovery, where differing expectations for preservation, production and processing cofound many in-house teams.

Looking to peel back some of the confusion and apprehension e-discovery practitioners face, Legalweek West's “Managing Expectations in a Government Investigation” session on Tuesday, June 13 in San Francisco hopes to offer some clarity on this regulatory maze.

“I think that the real impetus behind this session is to think about the use and the role of e-discovery in the context of government investigations,” said Lily Chinn, managing partner at Katten Muchin Rosenman.

Chinn will join Michael Dicke, partner and co-chair of the Securities Enforcement Group at Fenwick & West, and Helen Bergman Moure, principal of Lex Aperta, to shed light on how to navigate e-discovery requirements of federal investigations.

“I think the first thing that a company needs to do is ask, does the [investigating] agency issuing the request have specific published expectations about how e-discovery should be collected, produced and processed?” Chinn advised.

For many companies, however, some agencies' e-discovery guidelines should come as little surprise or challenge. “For the SEC, they are pretty specific about how information is produced, and it's something companies and certainly IT professionals are pretty adept at following,” Dicke said. “It's not something I don't think, that's presenting huge amount of problems for many [large companies].”

But e-discovery guidance from the SEC is far from the only one a corporation may have to consider. Chinn noted that in addition to the multitude of federal agency guidance on discovery, “various state agencies may have different guidelines as well.”

“And even then, there is lot of different judgement calls you need to make implementing those guidelines,” she added.

Yet far from a burden, Chinn sees these demands an opportunity “to interact with those government attorneys to make sure you are meeting those expectations.”

“I found that being transparent in your discussions with them and having conversations with them about the best way to go about doing some of these tasks with e-discovery can foster [a good] relationship with investigators,” she explained.

Chinn added that regular and open communications can also aid a company in understanding the scope of the investigation, which she said likely nowadays includes collecting new forms of data, like social media content and instant messages, from mobile devices.

“This is an area [companies should] consider when collecting and processing electronically stored information (ESI),” she said, noting that mobile device data “is increasingly where many investigations are focused.”

A recent survey by Osterman Research, however, found that most corporations were still unprepared with e-discovery requests pertaining to mobile devices used in-house. Many may still be grappling with the significant challenges such collection can afford, ranging from custodian cooperation to impassable encryption.

Brad Berkshire, vice president of consulting and digital forensics at e-discovery company Planet Data, explained to Legaltech News that mobile discovery may be the most difficult to plan for given that “there are new applications and data sources being created every day.”

Yet companies face little recourse but to become more adept at such collections. “There are increasing risks to companies for making mistakes in the e-discovery response to governmental inquiries,” Dicke cautioned.

He noted, for example, that companies failing to adhere to investigation standards not only face high fines and potential reputational damage, but also criminal repercussions as well. “For instance, last year Volkswagen had to plead guilty to obstruction of justice all because they failed to preserve requested evidence,” Dicke said. 

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