The website of Main Justice carries a recording and the slides of a webinar delivered on 11 July with the title Best e-Discovery Practices for International FCPA Investigations. The webinar was accompanied by a paper which recorded the results of a survey undertaken on behalf of FTI Technology with the self-descriptive title 114 S FCPA Experts Surveyed: Best Practices Revealed. The FCPA, for those new to this area, is the US Foreign Corrupt Practices Act which (as we will see) is the biggest single driver for large-scale e-Discovery exercises of the kind which concern the responders to the survey.
If I were in confessional mode, I would admit that I do not always listen all the way through the webinars which I push your way, relying on the subject-matter and the quality of the speakers to act as a recommendation. I planned to do the same with this one, but then listened right to the end. Anyone with an interest in the practical aspects of collecting electronic documents for FCPA or analogous purposes should do so as well, particularly where there is a cross-border element.
Having thus unequivocally recommended it, it is perhaps otiose to summarise its contents – but I will do that anyway. The key points which interested me were the following:
Corruption Index ranking, Data Privacy and Cost
A graph showed the volume of investigations by reference to the “hub” from which the investigation was run – not necessarily the same as the locus of the alleged wrongdoing. Other charts showed the main challenges, of which cost and the strength of the data privacy regimes were highest. It seems obvious, but it is worth pointing out anyway, that the greatest difficulty, and therefore expense, will come when high levels of alleged wrongdoing coincide with strong data privacy regimes. Unsurprisingly, China, with its high ranking on the corruption index and strong state secrets legislation proved to be the most difficult and expensive place in which to undertake investigations.
Again unsurprisingly, foreign languages are a cause of significant expense, notwithstanding the improvements in multilingual software. The documents still need to be reviewed by people with appropriate language skills and, in China specifically, almost certainly by and at the offices of a Chinese firm or company.
The sources of challenges
The FCPA is the biggest source of challenges by a long way – 49% of those surveyed agreed on this. The other key challenges, in descending order of statistical importance, were whistleblowers, cloud data, International data privacy and, in last place, the UK Bribery Act.
The UK Bribery Act
Both panellists agreed that the Bribery Act had not lived up to (or down to) the level of concern which it had generated a year ago. Craig Earnshaw thinks (and I agree) that this will change – the Serious Fraud Office has indicated that it is investigating ten instances of self-reporting with more cases than that in the pre-investigation phase. We have seen a change of management, and possible direction, at the SFO and it would be unsafe to conclude that the UK Bribery Act has no teeth in practical terms.
The main focus of the webinar was on the practical ways of dealing with electronic discovery, particularly where data protection and privacy concerns were relevant. This was not the only reason, however, why clients might prefer a mobile processing and review environment – confidentiality, the convenience of being able to review documents on site and the speed which resulted from that, and the absence of a local provider of hosted document services all pointed to the value of having teams such as FTI has which can turn up on site with everything needed to get at least the first phases of the discovery exercise done locally.
This does more than reduce volumes. One of the key considerations is the identification of private information of the kind which should not be exported. It is very much easier, said Craig Earnshaw, to agree terms for export with employees, their representatives or local information commissioners once the data had been not merely culled and deduplicated but tagged, filtered and reduced to the minimum necessary to comply with the duties owed to the regulator or in the litigation.
The biggest single advance in recent years, Craig emphasised, was the availability of analytical tools and technology-assisted review which reduced time and therefore a cost which might otherwise be disproportionate to the substantive issues. Craig reported, as others have, that technology-assisted review is increasingly deemed reliable by regulators as well as by courts.
Regulatory investigations are not going to go away. Some industries have always been more prone than others to such investigations – both panellists agreed that the oil and gas, pharmaceutical and medical, heavy manufacturing sectors were obvious targets. Technology and financial services are increasingly the subject of investigations and, as a relatively new development, retail is coming under scrutiny.
As I say, both the webinar and its accompanying paper are well worth your time. Both, refreshingly, are instantly accessible without the need to fill in forms.
What Craig scrupulously avoided mentioning was that FTI has recently launched Ringtail 8 which, after a substantial redesign, is effectively purpose-built for the type of investigation which was discussed in the webinar. The incorporation of analytic tools such as Document Mapper which FTI first acquired with Attenex is a major component of this, as is a redesigned and user-friendly interface.
Not the least of Ringtail 8’s virtues is the new set of tools for managing multiple matters and reusing data which bring down cost and start-up time, as well as improving consistency and maximising the retained value of earlier work product.