When a whistleblower makes accusations of money laundering at a large international bank, it isn’t the kind of information you just sit on. But where does an investigations team begin?
RelativityOne Silver Partner icourts, based in Australia, was recently pulled into just that scenario. Moving quickly—but with an eye for building a thorough understanding of evidentiary data—the team leveraged RelativityOne to build a thoughtful case strategy, perform early case assessment, and deploy multi-faceted data analytics to get to the bottom of things. In the end, they sifted through 75 million pages of data to reach a resolution.
It’s this kind of well-rounded, holistic approach to investigations that helps uncover the truth in a timely manner, and enables justice to take precedence in the wake of bad behavior.
Inspired by her team’s work, we sat down with Sarah Peterson, manager of evidence management at icourts, to get some perspectives on best practices for modern investigations. Read on for her advice.
How do investigations work and e-discovery differ, and how do those differences impact the way you work with clients on either type of project?
Data is data—so there are many similarities in e-discovery and investigations, but there are a couple of distinct differences which impact the way you approach projects and work with clients.
The most obvious difference is the timeframe. Litigation is operating within the context of court-mandated deadlines which are often tight and inflexible. Investigations, on the other hand, usually have more time to take a wider view.
The different timeframes are often reflected in the type and context of the data involved in each project. In litigation, the parties involved already know enough details to either file a complaint or respond to a specific claim or charge. e-Discovery may involve receiving tranches of data in which every document is responsive. These projects must be approached with a strategy of prioritising documents for review rather than culling irrelevant data.
Investigations are the pre-work before charges are filed or disciplinary action is taken. There are a lot more unknowns in the data involved in an investigation. You may have a small insight from a tip-off (“there may have been illegal activity around this date,” for example) but the full story is still unknown. It is important to take a broad approach to the data around that time, person, or event to find the bigger picture. You also want to identify any other patterns of similarly nefarious behaviour that you did not know about from the outset.
Much of this work comes down to that all-important triad of people, process, and technology. How do you balance these components of your strategy for each project?
Even the most sophisticated technology and processes are nothing without the right people (clients, lawyers, investigators). I try to nurture my clients into understanding the benefits of using technology to its full potential. Education is key; many clients have not been exposed to a robust data management platform or have had limited exposure to its full range of features (often without realizing this), so I try to demonstrate the most helpful features of RelativityOne on their project data. By showing them how their project benefits, they gain a better insight into the power of the software.
Working with clients is a continuous process of coaching and feedback—you can’t just ‘set and forget’ by demonstrating features at the beginning of a project. Certain features are appropriate for various stages of the project. For instance, textual near-duplicate detection or email threading are particularly useful in prioritising review in litigation, but the team will need to review the remaining set of documents later using other features to filter documents into batches.
It is also vital to ensure that your understanding matches up to your client’s understanding and vice versa. Active learning is an immensely powerful tool, but you must step back and look at the results the machine is generating. Does this fit with your client's understanding of the matter? Are the results what you expected to see? Do we need to circle back and use another feature such as conceptual analysis to look at the data from another perspective?
How does the involvement of a whistleblower make an investigation easier to track down—and what complications might that dynamic introduce?
A whistleblower gives investigators a place to start. They may provide avenues to pursue, such as a certain person, bank account, or date range. But whistleblowers can also create complications because, ultimately, they are human. On a rare occasion, a whistleblower will deliberately mislead or have an agenda, but this is usually filtered out at the preliminary stages. More commonly, their recollection or interpretation is not perfectly reliable. You must find hard evidence to back up their statements if the investigation is going to stand up during prosecution.
In every case, investigators must be very careful to approach an investigation with an open mind, not a predetermined outcome. The same goes for the analysts providing technical support to the project. The whole investigation team needs to be sensitive to any potential bias created by the whistleblower’s information and make a conscious effort to stay open. You need to keep looking for avenues beyond the whistleblower.
How important is it to build a case strategy at the onset of an investigation, and how do you recommend this process begins?
It is very important, probably the most important thing, to build a case strategy at the outset of an investigation. Early engagement with your clients to define the investigation strategy will save a lot of time in the long run. If you don’t have a strategy, there is a risk of falling down a rabbit hole and pursuing avenues that don't deliver anything. You need to be mindful; the timelines in investigations are not as high-pressure as those in litigation, so you want to avoid the possibility of it stretching out for years.
As for defining case strategy, each project needs to be approached on its own merits—but there are a few tactics I recommend.
Firstly, you need to define the objectives of the investigation. This ensures you can continually measure yourself against your strategic objectives and recognise when your current tactics are not working. With the strategy defined, it is important to continue to circle back to it, as the investigation develops or more data is produced.
You also need to have a conversation with everyone involved and gather as much information as possible. Once you have a deeper understanding of the knowns and unknowns, you can make the best recommendations about what tools to use at each stage in the investigation to find the story hidden in the data. As consultants delivering technical advice to an investigation, our team at icourts delivers far greater value if we stay involved through the whole process (rather than working on tasks piecemeal) so we can provide holistic guidance on the big picture of the investigation.
How does the icourts team work to stay ahead of the curves on the legal and regulatory landscape, as well as emerging tech?
icourts is unique in that we are both a law firm and a technology consultancy. I am not a lawyer, but like all practitioners, the lawyers within the team maintain a practicing certificate and keep abreast of changes within the legal and regulatory landscape that affect the areas we service.
Because the pace of change is so swift, we are cognisant of how these changes affect our clients and the industries we serve.
We are also all techy, so as a team, we make it our mission to stay ahead of the curve when it comes to technological innovation. Technology is often the best solution for many of the challenges in the regulatory environment—such as auditing, reporting, compliance, and investigations. We are always researching, testing, and implementing new features or developments so we can deliver the best outcomes for our clients. After all, it is always fun to play with new toys!