Electronic Discovery Institute Class 30: eDiscovery Challenges in Specific Practice Areas: Governmen

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on August 25, 2018, Go to https://www.lawinstitute.org/ to sign up for it. The course entitled, eDiscovery Challenges in Specific Practice Areas: Government Investigations is taught by Patrick Oot, an attorney with Shook, Hardy & Bacon LLP, who was special counsel for electronic discovery at the SEC; Kimbir Tate, senior litigation support manager at McKesson; and Dave Shonka, a partner specializing in data security at Redgrave LLP.

Origins of a Government Investigation

Attorneys should consider where the claim came from - a whistleblower, the media, or through an attempt to comply with regulations. Government investigations may be conducted simply in order to confirm that law is not being broken. Customers or suppliers may also be regulated. A company may not necessarily be the subject of an investigation but may become involved with one. 70% of qui tam actions are initiated by whistleblowers.

Key Players

Some actors other than those which are legally culpable may be come involved in an investigation.

The SEC , FCC, and the FTC often initiate investigations. Agencies may or may not have the authority to get information from businesses.

First Contact

A CID (civil investigative demand) may be received from the government, which will be the first indication a business has that it is under investigation. The investigators may give the opportunity to proffer evidence. The proffer is a chance to given information to the government and reduce culpability for illegal conduct.

An access request is a letter from an agency to a party asking for information to be submitted to it voluntarily. Under the FTC Act, the FTC has the authority to issue section 6(b) orders to get additional information.

Not all government agencies have subpoena power. Whistleblower acts or qui tam acts may facilitate a governmental investigation.

Some businesses may choose to reach out to government on their own. Substantial cooperation credit may be received if this is done.

Assessing the Claims

The first step in the assessment is building a team. It may be necessary to engage a PR firm or outside counsel. Someone from the corporate finance groups should definitely be involved. A huge corporation will have to identify which business unit will have to address an investigation. The investigating agency may issue broad based subpoenas and not be focused on particular information.

A crisis management plan should be implemented. Investigations many not necessarily lead to a full inquiry.

Creating an Investigative Plan

A disclosure plan should be identified at the outside. The collection and preservation of data should be addressed very carefully. Outside document reviewers and experts should be involved in the process. It is not always necessary to issue a hold notice for every investigation. However if a company is a the subject of an investigation it needs to issue hold notices immediately.

Early contact with the government with respect to technical issues may help move the investigation forward. A comprehensive request may be made, accompanied by a meet and confer invitation so the inquiry can be narrowed to collecting data from specific custodians.

Remember that everything relates to the claims in the case. If a business doesn't know what the government is looking for it may not be able to respond. It may be necessary to pin down the subject of the government's investigation.

Outside Counsel

Outside counsel may function as intermediary between the government and a business. It can ensure that the business performs its due diligence with respect to the investigation. A business that is very familiar with government investigators may be reluctant to produce information. Outside counsel should be intimately involved with the FTC or the other investigating agency.

Bad actors within a company may have not followed the rules simply because they did not understand them. A high level investigation may necessitate providing legal counsel to board members.

Companies may employ lawyers to represent individual employees which have different issues than the company itself.

Communications with the Government Agency

A company should not have an antagonizing relationship with the investigating agency even if it has an adversarial relationship with it. An agency may independently contact a business' suppliers.

Someone should be specifically responsible for having contact with the government. The end game is the presentation to the government. This presentation should identify high level themes. It may be wise to offer a mea culpa on behalf of the client, particularly in compliance investigations.

Early Reporting

Self reporting may help a company's reputation. A corporate integrity agreement may help a company fly under the radar and avoid reputational harm with the public and bad press.

Forensics

Ms. Tate stressed the importance of companies knowing what they have and where they have it. She addresses a situation at least a couple of years which concerns whether or not an American agency can monitor data that is held outside of the Untied States. It is not possible to issue a hold in some countries, such as Dubai. Retention policies should be reviewed. It may be important to get images of computers or mobile devices that hold data that cannot be obtained from other sources.

False Claims

False claims are often brought on the basis of evidence provided by whistleblowers. Government contracts which require healthcare reporting may be bring a company under risk for false claims.

Government Response

The government may decide that there was a violation and that a fine is justified, but not want to move forward with an extensive investigation. Some agencies may initiate administrative proceedings.

Conclusions The more communication one has with the government the more likely a settlement may be reached. Some businesses sued by the government no longer exist. It's important to know what part of the government is dealing with a client.