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Combating Global Corruption: Lessons from the 'Jason Bournes' of e-Discovery

Keely McKee

Editor’s Note: In honor of RelativityOne becoming available in Brazil and Relativity Fest kicking off this weekend, we’re republishing this article covering a Relativity Fest 2016 session on the Relativity community’s work in South America. Give it a look and let us know what waves you’re making in the global e-discovery world in the comments or on Twitter.

When many hear words like “fraud,” “bribery,” and “corruption,” they imagine investigators traveling the globe, searching for clues to solve a corporate scandal, and ultimately putting the bad guy behind bars. But what is it actually like to investigate these crimes?

From the Panama Papers to the FIFA scandal, we’ve seen technology become imperative when investigating corruption across the globe. Here’s what attendees learned from a Relativity Fest panel, featuring Hogan Lovells litigation project manager Jeremy Burdge, as well as Control Risks partner Terry Chopiuk and others.

Lesson #1: Understand the Four Focus Areas in International Investigations

There’s no doubt that global corruption has seen an uptick over the years. Since the inception of the Foreign Corrupt Practices Act (FCPA), there have been a total of 273 investigations led by the US Department of Justice, 190 investigations led by the US Securities and Exchange Commission, and $8.6 billion in FCPA sanctions.

“While we have significant matters in the US, these international matters take on a different flavor. What’s really unique and significant in these types of projects is the sheer complexity, the number of layers, and the work streams involved,” said the moderator of the panel.

In one case that Control Risks and Hogan Lovells worked on, they had 850 custodians; 225 terabytes of data from 2,030 data sources; and stakeholders from seven different law firms, five government agencies, two consulting firms, four audit firms, and four litigation support vendors. They needed to collect and image data from multiple companies in Brazil. They needed to work with foreign and domestic government agencies, account for local laws and protocols—and ultimately take a multi-disciplinary approach.

“A lot of investigations start out with the unstructured data, but we bring together a lot of different work streams,” Jeremy explained. They focused on four different areas: digital forensics, intelligence gathering, unstructured data, and structured data.

While structured data may be overlooked in some investigations, it can be incredibly helpful to guide your search. Not only did the team review data from the custodians’ computers and mobile devices, they also looked at CRM and accounting systems.

As Mason Pan explained: “When you’re dealing with allegations around improper payments, you need to look at transactional, financial, and accounting information to determine who’s paying who.” This allows your team to follow the money by analyzing documents and email conversations related to those custodians.

Tip for Your Next Investigation: Don’t ignore structured data. You need to know what it can reveal side-by-side with unstructured, conversational data—things like important trends in financial behaviors, among other critical factors.

Lesson #2: Use Data Analytics to Follow the Money

The Control Risks team reviewed emails, documents, forensic reports, interview notes, and more to put the story of their investigation together.

“There’s varying degrees of IT maturity around the world. IT departments may or may not have control over their employees’ data, which drives your ability to properly map the network,” explained Terry. Because the case surrounded corruption and they weren’t positive the information was reliable, they pulled from multiple sources to confirm what they were being told was true.

The team was unable to take data out of Brazil, so they set up shop there. Because review teams in Brazil are newer to e-discovery, they had to train 150 reviewers on how to review documents in Relativity. Technology-assisted review (TAR), email threading, and near-duplicate detection allowed the team to cut through irrelevant data and prioritize key information more quickly. Investigative teams, like litigators, often find quick wins via email threading because it simplifies review by pointing attention directly to holistic records instead of disparate messages. Meanwhile, TAR can give investigators a leg up by bringing potentially critical information to the forefront quickly, while setting aside less relevant material for later attention.

Though investigators would traditionally use judgmental or stratified sampling to select a subset of transactional data to review, closer examination of metadata trends such as backdated invoices or after-hours transactions allowed the team to identify trends and red flags among the whole universe of information.

“Data analytics has changed the way investigators review accounting information. When you can look at the entire universe of data, you have a more valid and complete analysis,” said Mason.

Tip for Your Next Investigation: Verify the facts of a matter by pulling information from various sources to get the whole picture of a case—with an understanding of local regulations on how and where this data can be moved for investigation. Then, closely examine structured metadata as well as unstructured content to identify critical patterns of behavior. Analytics options such as TAR can greatly accelerate the latter effort.

Lesson #3: You Need More than ESI to Solve the Puzzle

The team’s focus was on intelligence gathering: of critical importance in investigations. “Only looking at ESI is like reading a book with missing pages,” the Control Risks team explained as they shared how interviews and intelligence fit into investigations. Technology has helped make investigations more efficient, they argued, but it’s necessary to hit the pavement and conduct interviews to gain intelligence.

When intelligence and review teams share knowledge, they get a more nuanced view of custodians, and both teams can use the information to help focus the search. The intelligence team can use data to determine who to talk to and better plan for interviews. With more data on the custodian—such as who they’re contacting and what documents they have on their machine—the more the interviewer can target questions and get more information.

This is a mutually beneficial relationship as the review team can use information found during interviews to guide and target their document search.

Tip for Your Next Investigation: Prioritize which custodians to interview—and which questions to ask—with the help of both review team leaders and intelligence gatherers. You can use early lessons learned from your initial data review to better focus these conversations and dig into nuances that human-to-human interviews can uncover best.

Each panelist provided a piece to the investigative puzzle, sharing advice for cracking a cross-border investigation: take a multi-disciplinary approach and gather intelligence, understand local contextualization and considerations, and use your data to follow the money. While these investigations can be incredibly complex, thinking in these terms will help guide your case and make your missions possible.

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Keely McKee is a member of the creative team at Relativity, specializing in content development.