Migrated from eDJGroupInc.com. Author: . Published: 2012-05-30 09:00:33  I was in New York City last week for some meetings and to attend the UBIC seminar at the lovely Harvard Club in midtown.  UBIC has been on my radar for awhile since they are an Asian company trying to enter the US market.  I have a personal interest in international data privacy rules and the Asian marketplace, and UBIC has been making some interesting moves this past year.The theme for the discussion was “Under Investigation:  Meeting the Government’s Expectations” which was a welcome change from the normal eDiscovery topics I’ve seen lately.  The first speaker of the day was Avi Gesser, counsel for the fraud section at the Department of Justice and former Davis Polk partner.  Mr. Gesser provided insight on some of the best practices in working with the government related to eDiscovery.Mr. Gesser offered several recommendations to the crowd:

  • Act early – Start the communication process early and be very open with the investigators
  • Senior partners from the outside counsel need to be more involved in the discussion process and can’t simply leave it to the associates
  • Deal with transient data issues quickly to avoid spoliation concerns

He then offered up a fictionalized case study on a company accused of wrong-doing as part of a whistle-blower case involving bribes and the Foreign Corrupt Practices Act (FCPA).  It is an excellent example of a company trying to do things correctly, but still aggravating the government because of lack of experience dealing with both eDiscovery and government investigation.  We will more than likely have a deeper dive from an outside contributor in the near future on the case study, so I won’t go too deep here.The most important point Mr. Gesser made from my perspective was that it is extremely difficult for the government to distinguish when a company (and outside counsel) is trying to do things correctly, but makes mistakes compared to a company (and outside counsel) that is putting up obstacles to the investigation.  It is key for the corporate contacts and outside counsel to develop a relationship with the investigators and staff to build trust as early as possible.The second part of the program was a panel moderated by former Gartner analyst, John Bace.  The panel included Karl Buch (Senior Corporate Counsel, Pfizer), Edwin Larkin (Partner, Venable LLP), and Paul Starrett (Chief Business Operations Officer, UBIC North America).  The topic was “Preparing for and Executing Internal Discovery to Meet the Government’s Request for Information”.The panel brought up several excellent points on how to work when dealing with these pressure cooker situations.

  • Begin effective communication immediately – It was nice to hear both parties have common ground here and looking to discuss complicated issues early in the process.  In fact, it was recommended to invite input from the investigators so that they are involved in scoping out in the same manner as a 26(f) conference.
  • Deliver something immediately – There may be terabytes of data to review, but getting meaningful data to the government to review is important to showing good faith efforts to comply with the request.
  • Manage the Government’s expectations – As part of the good communication, set the expectations on what can be done and when it can be done.  You don’t want to spend a ton of money and several months of processing looking for a needle in the haystack across hundreds of backup tapes when you can discuss the situation and compromise on a particular set.  The government may not understand the complexities to get to the data they are requesting.  Having a qualified and respectable 3rd party expert goes a long way in convincing the investigators that the company isn’t trying to create obstacles to the investigation.
  • Have a litigation readiness plan – There was an informal poll at the program and only 5% of the audience either had a litigation readiness plan or had worked on developing one.  This was pretty shocking to me, but an excellent reminder why Greg and Mikki spend so much time in the field creating and implementing litigation readiness plans with corporations.  If corporations have a plan for dealing with complex eDiscovery issues (data in “The Cloud”, unstructured data, structured data, etc.) it is much easier for them to respond to government requests for information.

Having been involved in many government investigations over the years (on the vendor side) as an expert witness, it was obvious to me the panel had a great deal of experience dealing with eDiscovery and government investigations.  There were several other issues discussed including data privacy issues. It was suggested during the discussion (I won’t say who) that the government will not ask you to violate another country’s data privacy laws, but expects the corporations to be creative about locating and producing the requested information.  This is a very complex issue and requires the involvement of local counsel in the country where the data is located.Overall, it was a very interesting discussion and well put together panel.  I hope UBIC continues to put on these types of discussions.eDiscoveryJournal Contributor – Jason Velasco

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