The Need for Speed and Secrecy – eDiscovery Investigations Series, Part 2
A multi-part series discussing the realities of eDiscovery in the context of investigations
by Matthew Verga, JD, Xact Data Discovery
“I feel the need – the need for speed!”
– Jim Cash & Jack Epps, Jr., Top Gun
In the first Part of this series, we reviewed the categories of investigations in which companies are frequently involved and their general eDiscovery ramifications. In this Part, we dive deeper into the need for speed and secrecy in the conduct of an investigation.
The Need for a Different Approach
As we noted in the first Part, investigations often function on even shorter timelines than litigation discovery and often require more-careful control of the flow of information.
Time pressure is great in most investigative scenarios. If you are working to assess an internal issue, you will want to identify and quantify risks to the organization as quickly as possible so that they can be appropriately mitigated. If you are working to respond to a regulatory agency’s information request, you will likely be facing a tight, agency-imposed deadline, in a context where you want to satisfy the agency, in which the potential for renegotiation is limited, and in which the option to appeal to an independent judge is generally unavailable.
The need to more-carefully control the flow of information arises from the reality that in many investigative contexts you will be looking for bad actors within your own organization. Failure to control the flow of information (or to move with sufficient speed) provides opportunity for bad actors to spoliate evidence to cover their actions and to coordinate their stories with each other before talking to you. In either case, your ability to assess organization risks or to respond accurately to an investigating agency would be compromised, and the cost and effort required would become greater as you worked to overcome the attempted spoliation or penetrate the deliberate deception.
