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4 Sources to Search for a Digital Smoking Gun

Stan Pierson

In a recent survey, nearly 86 percent of chief litigation officers who responded said their companies conducted an internal investigation in 2016.

The goal of each of these investigations was likely the same: to nail down the facts about what happened (and when), who was involved, and why. Unveiling the facts both efficiently and accurately, however, was likely a challenge met with varying degrees of success.

Because a methodical and punctual e-discovery process can be elusive when addressing various data sources and custodians, we asked ourselves how investigators can use search functionality to their advantage. Where should you start if you want to find the most flavorful pieces of the proverbial pie?

One way is by thinking about the types of information most critical to the story. Here are four themes to search for as you try to track down the smoking gun that will help make your case make sense.

1. The Insider Intel

To get to the heart of an internal investigation, you need to discover who is swapping data files and sharing intel across inappropriate lines. That means piecing together what information was accessed, by whom, and when.

Unfortunately, daily communication at any organization often includes excessive file sharing and those dreaded “reply alls”—making it hard to keep track of how each data point originated, and with what intent. 

In this effort, it’s critical to track conversations in one place lest the details get lost in the shuffle—which means email threading and email thread visualization are particularly helpful. You can visualize email conversations across departments, including multiple custodians with relevant documents to see who was talking to whom.

By looking at those email groups by thread, you’ll be able to see the entire conversation in one place, alongside the documents each participant traded back and forth. There’s no better way to learn the thinking behind a corporate decision.

2. The Financials

Next, reviewers may want to start digging into some numbers to start piecing together a more complete picture. The fiscal impact made by a decision or nefarious incident can have ripple effects across the company, so before you can dig too deeply with your investigation, you’ll want to understand the scope of the matter. Naturally, this means a lot of numbers—and patterns—must be involved.

If you’re not familiar with Regular Expressions (RegEx), you should be. Once you know what you’re looking for, you can track down relevant documents with this specific and repeatable workflow. RegEx looks at patterns—as opposed to terms and phrases—to search for strings of characters that match it, rather than constructing literal search queries. For example, if you’re searching for credit card numbers, you’re usually looking for four sets of four numbers each, separated by dashes.

Utilizing this search functionality can help cut down considerable time for reviewers by helping to find responsive documents much more efficiently.

New to RegEx? Watch this. Need a refresher? Bookmark this handy searching guide.

3. The Context

As internal conversations and financial involvement are starting to come together, it’s now time to start investigating some of the behind the scenes decision-makers.

Consider this scenario: You are looking at some potentially important meeting minutes. You see one passage describing the presentation from a development team leader to the board, in which he showcases the new product at the center of this investigation. You want to find out all the intel you can surrounding this product to help put this presentation in context.

It’s easier than you might think.

Copy and paste that meeting minute passage into an analytics search to pull back conceptually similar documents. Then cluster the results. When you visualize the clusters, you’ll be able to apply filters to see which custodians were involved, the date range of development progression, and keywords to add to your searching or document culling efforts.

With this conceptual map at your disposal, you can uncover the whole story about how teams interacted with one another to bring the product to market—and then gauge the board’s level of knowledge based on the truth you’ve discovered in the documents.

4. The Opposing Insight

Finally, after your investigation has proceeded to full-blown litigation and both parties have exchanged productions, a great way to learn about the other party’s documents is through aggressive analytics searching. You need to learn the language of the opposing production.

Did you have a keyword list that you used in reviewing your own documents? Enter it into a keyword expansion operation that applies to the documents you’ve received. The results will give you a list of words that are conceptually related to the ones in your original documents, which will go a long way in helping understand how the language in the opposing data set relates to—or differs from—your own.

Next, use your hot documents as examples for a categorization set to locate produced documents which likely include the same concepts—even if they don’t include the same lingo. After all, if the dispute is over a specific deal, contract, or product, a competitor’s documents may not say the exact same thing, but the concepts are probably very similar.

Conceptual categorization can help you discover how your own documents fit into the story with the opposition’s documents, and that means you’ll likely find the ones the other side marked “hot” as well. This could help your team develop your defense, or go a long way in seeing what the other side’s theory of the case might be.

Corporate litigation can be messy: decades of various data sources and multiple custodians, combined with pressure from the opposing side to produce, can leave reviewers feeling overwhelmed. Even with knowing the products and tools at your disposal, it can be difficult to know where to start.

By using an investigatory mindset to understand the why behind the what of a matter, corporate legal teams can create repeatable workflows that get the job done quickly and effectively.