Given the on-again, off-again in-person restrictions imposed around the country due to COVID-19, it is highly likely that internal investigations will continue to be conducted virtually well into 2021. However, during 2020 it become apparent that many law departments still lack a formal process for remote investigations and fail to consider appropriate technology for all stages of an investigation. Insufficient planning and oversight can have a profoundly negative impact on investigations, with project scope and costs quickly getting out of control, especially in matters that are complex and data-intensive.
There are three primary challenges that companies face when conducting internal investigations during the pandemic:
1. Remote work makes interviews and data collection more difficult
With employees dispersed, their data is likely spread across multiple locations and devices, and custodian interviews will almost certainly have to be conducted remotely.
Solution: Organizations must plan carefully and create clear policies that reflect these new realities. Instead of taking an ad hoc approach, they must treat internal investigations with the same level of deliberation and strategic planning as any other legal matter that presents financial and reputational risk. Start by establishing a formal plan for investigations—or revising your current plan to account for new challenges presented by COVID—and put it in writing.
The plan should outline, in detail, how your team will respond to each successive phase: the trigger event, legal hold, custodian interviews, requests for data and data collection, document review and analysis, and, finally, recommendations for next steps. The plan should designate stakeholders and responsibilities, identify the tools investigation teams should consider using at different phases, and recommend a process for efficient collaboration among team members and departments. It should also provide clear guidance for managing investigations in the context of remote work. Will remote interviews include video as well as audio? What measures will you take to prevent inadvertent or deliberate destruction of data when employees are working from home? Will the criteria for prioritizing investigations change during the pandemic?
2. Data and data types continue to proliferate
We all know there has been a data tsunami taking place in recent years. Increased electronic communications are resulting in exploding data volumes and the proliferation of new data types— from collaborative tools like Slack or Teams, from a rapidly increasing array of social media apps, from cloud tools and repositories like Dropbox, Google Docs, and Office 365, and from mobile devices. New data types can be difficult to collect and, sometimes, to interpret. Mobile device management (MDM) software is a prime example of this. In the current environment, it is increasingly likely that MDM data may be critical to many internal investigations. While most enterprises use MDM software, investigation teams are still learning how to identify and collect potentially relevant MDM data, and many lack a tool that can convert it into a usable, easily interpreted format.
Solution: This is where appropriate technology becomes essential. In fact, your most valuable asset in conducting internal investigations efficiently may actually be your eDiscovery platform. Today’s best eDiscovery solutions can help support hundreds of file types used in corporate environments and convert those files (including MDM data) into information that is easy for non-technical users to grasp quickly. Some platforms now offer built-in artificial intelligence technologies like machine learning, natural language processing and data analytics. With minimal human intervention, these tools can comb through unstructured data quickly, identify relevant data and dramatically reduce document review time. Cloud-based platforms are also ideally positioned to give investigation teams convenient access to diverse stores of data from remote locations and to accommodate the collaborative, interdepartmental work that most investigations involve.
3. Work-at-home mandates have created new information security vulnerabilities
Most employees are working remotely, may be using their own devices, and may not be using secure Internet connections.
Solution: Organizations need to assess their security infrastructure and review protocols to account for a dispersed workforce. Data security must be reconsidered at every phase of the investigatory process. Preservation of data collected for investigations, multi-factor authentication for secure access to that data, and chain of custody must all be considered in your planning for investigations and carefully documented during execution. Investigators must be familiar with privacy and data transfer laws within their jurisdictions and wherever the investigation reaches—especially when virtually transmitting sensitive data. Organizations that have migrated data and applications to the cloud will have a big advantage here. Most cloud solutions today offer enterprise-grade security products and protocols for network monitoring and infrastructure protection.
In spite of the dramatic changes we have seen in 2020, the entire internal investigation process can still run smoothly when you engage in careful planning and leverage flexible, cloud-based SaaS solutions that are specifically designed for the defensible preservation, identification, collection, processing and review of sensitive information. Law departments that take a step back and fine-tune their approaches to investigations in light of the pandemic will end up with a less risky, more efficient, and more cost-effective process that will serve them well long after the pandemic is over.
Today, David leads Casepoint in its global sales and marketing strategy with foresight. In addition to business development strategy, David is very well-versed in Casepoint’s solution and technological prowess. David is attuned with the Casepoint application and its development since inception. He has also been on the client-side of the Casepoint application in his previous positions.
Prior to joining Casepoint, David Carns’ positions included Director of Practice Technology at a premier global law firm, Technology Consultant, and Director of Technology. Carns holds a Juris Doctorate from The John Marshall Law School and a Bachelor’s degree in Philosophy from DePauw University.