Consilio’s business was founded on electronic discovery, the (usually retrospective) collection, analysis and production of documents and data required for litigation or for regulatory investigations.
Discovery remains important, of course, but it has become increasingly important also to identify behaviour which is likely to lead to litigation or regulatory intervention, is likely to generate poor publicity, or is in some way contrary to the policies and ethos of an organisation.
This is usually thought of as something with a financial motive involving, perhaps, insider trading or bribery. Increasingly, organisations are fearful of a wider range of activities such as discrimination and sexual harassment. The #MeToo movement generates much the same reaction as the FCPA or the UK Bribery Act.
Consilio has been adept at applying eDiscovery technology to identifying (or even anticipating) such harmful activities. The proactive identification of high-risk behaviour can save a great deal of trouble, expense and damaging publicity later on.
Consilio has conducted a survey to find out how companies are investing to deal with this. The summary of the findings, including a useful graphic, can be found here.
To learn more, I spoke to Roger Miller, Managing Director at Consilio, whom I have recently already interviewed at Legaltech (the video of that will appear here shortly). The investment referred to in the press release, he said, consists partly of new technology such as Consilio’s own tools, and partly in developing better workflows and recruiting and training people to undertake monitoring using these tools.
Instead of having to monitor everything, companies can point at a suspected problem, quickly ingest relevant documents and data, and focus on the problem people and areas.
Companies know the people most likely to bring risk, and they know which are the problem countries. The focus point is often those who are seeking approvals or contracts, and the scope is often supplemented by a whistleblower or tip-off hotline.
I asked Roger Miller how this type of monitoring sits with the privacy restraints in the EU and elsewhere – something which is not a great problem in the US. The use of this technology is necessarily more nuanced in such countries, perhaps limited to finding what the US calls “probable cause” and leading investigators to an approach which reconciles the need to investigate with a respect for privacy laws.
It is easier where litigation has actually begun. Roger Miller gave as an example a complaint about sexual harassment and about the fact that the organisation had taken no action about it. That led to litigation. The company believed there was no basis for the claim, but the data showed otherwise; the case was settled and the employee was fired. The ability to ingest and analyse data quickly helps promote settlement discussions.
I asked Roger Miller whose budget this comes from. Typically, he said, it comes from the information governance budget of large corporations – it is interesting in itself to learn that such budgets now exist. Compliance departments have their own budgets. Ultimately the decision-maker is the general counsel.