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eDiscovery in investigations - top tips for production (to the authorities)

Author
Zachariasen Christina
Christina Zachariasen

eDiscovery Consultant

London

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13 May 2021

eDiscovery can substantially ease the process of disclosing documents to investigating authorities, particularly in multi-agency, and multi-issue investigations.  This post considers how.   

Plan ahead – consider relevant document production protocols at an early stage

We have already talked about the importance of making sure that steps taking during the early stages of eDiscovery are defensible.  To do this, you have to know the rules or expectations that may apply later on if an investigating authority becomes involved.

Over the last 15 years procedural rules have played catch-up with how people communicate, and how businesses create and store documents and data.  The US Rule 26(f) and the UK’s PD51U now ask parties to consider the method and format of data disclosure early on in litigation. Regulators such as the Competition and Markets Authority (CMA) and Financial Conduct Authority (FCA) have published disclosure protocols which specify the method and format of document disclosure, including the treatment of document families (eg, emails plus their attachments), load file formats, text file encoding and/or required metadata fields.

When conducting eDiscovery on a matter which you suspect may lead to an investigation, find out if the relevant investigating authority has a defined production protocol and, if so, take that into account when planning the eDiscovery process, even if the authority is not yet involved.  This could save time and expense at a later date.

Tight deadlines? Prioritised and rolling disclosure shows good faith

Authorities’ expectation can sometimes be divorced from the reality of the time it takes to conduct an eDiscovery exercise. Deadlines are often imposed or have to be agreed to without a proper understanding of data volumes, data collection logistics or review rates. It may be that there is simply not enough time to locate, process and review all of the potentially relevant data and still meet the deadline.

The ideal scenario is to understand the relevant data sets and speak to the eDiscovery team before committing to any deadlines.  The next best option may be either to agree a deadline extension once you have a fuller understanding of the work involved or to provide what are known as ‘rolling’ or staggered productions. Instead of releasing a single production at the end of the review phase, rolling productions are made of sub-sets of the overall dataset.  These sub-sets may be selected and prioritised in any number of ways such as first in, first out or primary individuals of interest followed by secondary individuals. In this way, a party demonstrates good will by meeting the deadline with at least a portion of the required production.

Remembering what you have given to each authority, and when

It is not unusual for large global companies to face concurrent investigations, perhaps one internal and one external or several concurrent external investigations by authorities from different jurisdictions. A good eDiscovery platform allows for efficient management of concurrent investigations to avoid unnecessary confusion and duplication of efforts. Large numbers of documents can be easily divided amongst concurrent reviewers whilst at the same time being maintained safely within a particular work stream using designated user access rights.

Reviewers’ decisions can then feed directly to multiple production sets, each of which may be created according to a particular authority’s disclosure protocol and specifications. As every reviewer decision and database administrator action is tracked from the start of a review through to disclosure, it is easy to trace the route a given document has followed to make it to production as well to determine which documents have been disclosed to whom and when.

Privilege

A thoughtful approach to privilege review is a part of any eDiscovery exercise.  Privileged documents must be clearly identified for proper treatment. What that proper treatment is depends on a number of factors, including whether or not produced documents are to be provided as families (eg, emails plus their attachments inclusive of any non-relevant material), whether documents are wholly or partially privileged, whether or not any documents contain redactions and whether the production protocol calls for the use of slip sheets and/or privilege logs.

For example, the production protocol may specify document-level disclosure, meaning that non-relevant attachments or parent emails of document families will be excluded from disclosure. To avoid unintentionally disclosing any withheld attachments of a parent email, the proper treatment here is to turn the email into a static image version from which the attachments cannot be extracted.

The key messages regarding privilege are to (1) have a clear protocol; and (2) have a system of checks and controls to ensure nothing slips through inadvertently.

Redaction

Production sets often contain redactions and, like privilege, it is important to have a well-thought-out approach to handling redacted documents in a production set. Redactions may be applied for any number of reasons including:

  • Partial privilege
  • Commercial sensitivity
  • Confidentiality
  • Personally identifiable information
  • Relevance

The application of redactions is time consuming, however certain eDiscovery features and tools can alleviate some pain points. Redactions made on one document may be propagated to duplicate documents thereby ensuring consistency. Converting Excel spread sheets to static images prior to applying redactions often leads to excessively high page counts which are difficult for reviewers to navigate. Instead, the use of add-on software can enable the redaction of data in Excel spreadsheets without the need to first convert to static images.

When preparing redacted items for production, the eDiscovery team ensures that coding decisions denoting the need for redaction are aligned with the actual presence of redactions within the document.–To ensure the text beneath the redaction is not disclosed, they perform Optical Character Recognition (OCR) which creates text from scanning the document with the redaction in place. Any metadata redacted in the file such as email To, From, CC and BCC fields must also be removed from the disclosure’s accompanying load file to avoid inadvertent disclosure.

Again, as with privilege, it s imperative to have a system of checks and controls to ensure that every document which ought to have a redaction does in fact have one and that any information lying beneath redaction is not inadvertently disclosed.

This is the fourth post in our series on e-Discovery in investigations, which so far has also looked at:

Our next and final blog post in this series will list common pitfalls encountered when conducting eDiscovery exercises in investigations and provide advice on how to avoid them.

Our clients get highly effective and cost efficient eDiscovery because A&O’s experienced in-house eDiscovery team works closely with our lawyers and leverages the latest technologies and workflows available through RelativityOne.  To learn more about the services offered by the A&O in-house eDiscovery team, please contact Scott Robson or Christina Zachariasen. 

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