ELECTRONIC DISCLOSURE
Reaping the Benefits of Technology in a Regulatory Context
Andrew Szczech, Electronic Evidence Consultant, U.K. Region, Kroll Ontrack
In a widely reported case, British Airways was fined £121.5 million in August 2007 by the Office of Fair Trading after admitting ‘anti-competitive activity’ involving fuel surcharges on long-haul flights. These activities were discovered by the Virgin Atlantic legal team which was handling a separate regulatory investigation into alleged cartel activity relating to air cargo. As a result of this, Virgin Atlantic was given immunity and will not be fined in relation to fuel surcharges. Simon Williams, the OFT's director of cartel investigations, was quoted in many leading newspapers as saying "This illustrates the importance of declaring any skeletons in your cupboard if you are aware of competition violations".
Clearly, the use of technology can be invaluable as a method of quickly and thoroughly understanding the facts of a case. This article examines practical steps that can be taken in order to respond effectively to regulatory requests by maximising the use of technology. Specifically, it looks at ways in which technology can be used in order to help lawyers devise strategies in a case and to quickly get a handle on the facts.
One of the key problems that legal teams encounter is that whilst they have great clarity over the type of issue that is of highest importance for them – for instance, discussions with competitors over pricing - formulating a set of specific words and terms that will identify documents and e-mails that reveal such activity (should indeed it exist) is not so straightforward. Technology can help here as tools are available that not only search for individual words, but also show how words are used within the context of the documents being reviewed and which words (including names) frequently appear close to each other.
This can be extremely helpful when trying quickly to obtain key documents from what is likely to be a large collection. It will also help the lawyers understand the relationship between key individuals from whom documents have been collected. Simply running searches for key terms, such as ‘crisis’, ‘fix’ ‘emergency’, used in conjunction with the data dictionaries and conceptual searching can often provide immediate results.
Additional tools have recently been developed to help lawyers gain a greater understanding of written communication between parties. These graphically show not just the communications between internal parties, but also the external parties with whom there have been communications. This helps legal teams quickly understand the facts of the case, who is talking to whom and what they are saying to each other. This information can be invaluable when the need for early analysis and investigation is paramount. Additionally, it may also shape case strategy, allowing lawyers to refocus their efforts on individuals who may not have been identified as key players in the first instance.
The use of built in ‘data dictionaries’, where each occurrence of each word within the set of documents is recorded can be another powerful tool to assist with analysing the contents of the documents. These dictionaries are compiled regardless of whether the words are spelled correctly: they are simply a record of each string of characters (including proper nouns) which occur within the document set and therein lies their power. Data dictionaries help users ensure that when word searches are run these searches cover all variants of the search terms. Additionally, these dictionaries can be used to help easily identify which e-mail addresses individuals have used, including private e-mail accounts, often a vital component of any regulatory investigation.
The tools described above provide enormous value in a quickly evaluating the content of large sets of documents, but in the majority of circumstances there is still a need to review documents ‘one-by-one’ and these tools do not obviate that need. Even with this task however, technology can provide significant assistance to review teams. It is now possible for documents to be grouped within similarly themed sections. This means, for example, that when a reviewer is tasked with examining the contents of a mailbox it is very straightforward to sort the e-mails by ‘topic’. This is not just a question of sorting the documents based on, say, their subject line but actually by their true content. The benefit of this is that reviewers can achieve a far higher hourly review rate and therefore that the review can be completed in a significantly shorter timescale – review speeds being of high importance when having to respond to very tight deadlines imposed by a regulator.
The tools and techniques outlined in this article are used not just when organisations have received document requests from regulators or immediately following a dawn raid, but also in advance of any specific request. Within this context of internal investigations, companies and their legal advisers are using technology to understand their position and the precise activities and communications being carried by key individuals within the organisation. Internal investigations afford targets of investigations and lawyers the luxury of less demanding deadlines and the ability to focus and shape the investigation on their own terms, rather than the terms of a regulator.
It should be stressed that using technology delivers significant benefits not just on document heavy cases, but also where there is relatively low volume of documents. For example, when access to files is given by a regulator, these are often provided in the form of PDFs. There is frequently a need for many lawyers in multiple locations to access these documents, and the use of a web based review tool will facilitate this collaborative review. Even where there are say a few thousand documents to review, having these in a searchable database will enable theories to be tested in very short timescales.
No matter how sophisticated review technologies become, it must be remembered that these are only tools, albeit very powerful ones. These tools are designed with the specific purpose of helping lawyers to assess and analyse the content of documents and thus devise the optimum strategy for their clients as quickly as possible. Ultimately, using technology effectively can have a significant benefit by helping lawyers to focus on legal strategy and therefore obtain the best outcome for their clients.
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