Australia: Forensic investigations, the role of Corporate Counsel and the rise of information governance

Last Updated: 6 August 2019

In this article, Head of Forensics – Erick Gunawan, discusses the Role of Corporate Counsel in the context of litigation or investigation and the increasing importance of information governance in being prepared for when litigation or investigation arises.

The Role of Corporate Counsel

Corporate clients are becoming increasingly aware of new ways to ease the cost of litigation and have an understanding of new technologies including tools for minimising the time spent reviewing documents. Instead of having armies of junior lawyers manually reviewing hard copy documents and incurring a lot of billable hours, corporate clients are now talking to law firms and asking for new innovations and creative ways to perform these reviews. As a result, law firms are adopting a lot of risk, developing new tools internally and hiring innovation managers to advise the partners on how to incorporate technology into how they do things.

Increasingly, the role of in-house counsel is focused on managing legal operations rather than providing legal advice. They are working closely with other business unit managers to ensure they are compliant with laws and regulation, and may go as far as project managing the entirety of the data collection and document review.

Due to the cost issue, in-house counsel's roles now have a greater scope and more responsibility, and they need to be quite agile in not only providing legal advice, but also understanding legal operations and identifying risk and threat.

When Litigation or Investigation Hits

Most legal corporate counsels find themselves working in a very reactive way. An issue arises and they react to it, but more and more corporate counsel are moving toward preventative action to be ready for when something hits. For example, in eDiscovery where email servers may have held the last three months of data, they are now backing up one year of emails and setting up a process to know where all the data sits. So, when a potential litigation is on the horizon, corporate counsels can utilise all the available information in order to identify and collect all the potentially relevant data fast.

In the case of a Royal Commission, when the notice comes out, the timelines are very, very strict for producing documents. There are many data sources such as hard documents or emails or just old records. There is probably an online portal where people can record complaints. Everything that is of relevance has to be collected. In the case of a large company like a bank, there are numerous data repositories in which early analysis needs to be conducted and this is by no means a trivial process. Corporate counsel will need to drive the identification of such relevant data by often sending out questionnaires or conducting interviews with the respective employees or business units. Data preservation notices may need to be issued to ensure all potentially relevant data is not destroyed/purged. This identification phase is often the most critical phase of eDiscovery to ensure counsel is not over collecting all the unnecessary data, and on the flip side, to ensure they do not miss potentially critical evidence.

It is therefore important to consider how to prepare for any impending litigation or just how to get your overall organisational health in order. There are a few steps to take in that regard.

One step is to have proper data scope mapping. For example, if the financial systems changed over to a new system in 2015, then it is important to know where the back-ups of the old system are stored. If the organisation changed from Lotus Notes to Outlook in 2014, it is necessary to know exactly where the Lotus Notes back-ups are stored and if there were any issues during the migration which might have caused data loss or corruption.

Early Case Assessment (ECA) is important for discovery and litigation, particularly with large data sets, in order to see what is potentially relevant as a means of pre-screening the data and how the team will leverage analytics and technology. This is artificial intelligence – using machines to help get the job done better, not having machines actually doing our job.

If there is a lot of review work to be done, there are ways to scale up quickly with managed document review teams using the Electronic Discovery Reference (EDRM) model. The EDRM model sets out the steps for a litigation or investigation to present relevant data to the court.

The Role of Information Governance

With a large volume of data, applying the EDRM workflow, the team starts with data governance and then moves through to review or investigation. The data volume decreases during the process as the team find more and more data that is relevant. As such, information governance is the first step and the preventative part of the process.

If engaging law firms, they need to briefed of all potentially relevant data, having then performed an early case assessment to decide if a litigation is worth pursuing or if they were better off in settling. Australia is starting to embrace governance, particularly for the last eight to ten years. It is really about setting up the right processes and procedures to make sure that the organisation knows where everything is and that someone is managing and enforcing the data governance protocols. Many large organisations now have an information governance officer either in their IT, legal or risk team. More and more corporations are investing in this space to ensure their data is compliant with the local law and is preserved or destroyed accordingly.

The quality of an organisation's information governance protocols can have a dramatic impact on the time and cost associated with the review process. Ultimately, information governnce is an investment that can have long term benefits to organisations of all sizes.

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