How Technology Can Help CYA When the DOJ Comes Knocking

Few events tingle the spine of a corporate counsel more than a knock on the door from a U.S. Department of Justice FCPA investigator. We’ve all heard the horror stories. The scariest was in 2008, when Siemens agreed to fines totaling $1.6 billion to settle bribery charges brought by U.S. and German authorities.

What many corporate counsel may not realize, however, is that e-discovery technology can be just the balm they need to ease their frazzled nerves. In fact, a number of corporations are now using the same technology that litigators use in e-discovery to reduce their exposure in government investigations.

Legal departments’ need to address this issue is more urgent than ever, thanks to recent news from the DOJ. On April 5, the DOJ’s Criminal Division unveiled a pilot program to facilitate more robust FCPA enforcement. The pilot’s goal is to motivate companies to voluntarily self-disclose FCPA-related misconduct and more fully cooperate with the DOJ.

The payoff can be huge for companies that comply with the program’s requirements. They may escape prosecution entirely or, even if criminal charges result, they will be eligible for significant mitigation credits.

Here’s the hitch: Compliance requires that a company have in place an effective program that can root out potential violations and that can enable it to swiftly ascertain and disclose to the DOJ all relevant facts about the individuals involved in the wrongdoing.

That is not always easy to do, especially for a multinational corporation with vast data troves spread across disparate corners of the country or even the world.

This is where the technology comes in. Scouring all that data, thoroughly and quickly, is possible only with the right technology. A growing number of companies have come to realize that the right technology for the job is e-discovery software. It is unique in providing the sophisticated search and analytics tools their compliance staffs need to quickly dig up all pertinent facts.

A Case Study

Let me illustrate by telling you about a multinational company that now routinely uses Catalyst Insight for internal investigations of anti-bribery and other compliance issues in its offices in Asia, Europe and elsewhere.

When tips would come in of potential anti-bribery violations, the company would direct them to compliance staff in the appropriate regional office. There, standard procedure was to collect emails and other electronic files from the appropriate custodians and then sift through it all for evidence of suspicious activity. The process was inefficient and the results were sometimes questionable.

One day, a lawyer in the company’s Singapore office who had used Catalyst Insight elsewhere got the idea that it could be a more effective way to search and analyze this data. Insight worked so well that regional offices throughout the company followed suit. Today, Insight is the company’s default platform for all compliance investigations worldwide.

Now, for each new investigation, the regional office can set up a dedicated site in the cloud-based Insight platform within an hour. Then, using Insight’s automatic loading and processing, custodian data specific to the region is loaded from the company’s main servers into the site.

From there, regional staff use Insight’s search and analytics tools to look for evidence of the alleged impropriety. If the initial search uncovers evidence warranting further inquiry, the company turns the matter over to outside counsel to more thoroughly review the data and determine how to proceed.

For the company, a key feature of the platform is the ability to control the process itself without having to wait for a third party to process and load data. An entire investigation—from when the initial tip is received to when it is either closed or referred out—often takes no more than two weeks.

Features that Enhance Investigations

While an e-discovery platform can be a highly effective internal investigation tool, Insight has specific features that make an investigation even easier:

• Automated case creation, so the company can quickly set up investigation sites as needed without requiring third-party involvement.
• Automated processing and loading, so the company can load its own data into the platform and quickly get started with review.
• Robust and intuitive search capabilities, so that compliance staff can rapidly hone in on key information.
• Visual analytics such as timelines and relationship maps, enabling investigators to identify and explore patterns in email correspondence and other data.
• Integrated batching, export and production capabilities to easily deliver documents externally to outside counsel or government investigators.

For FCPA cases, a critical capability is multi-language document handling. In such a case, the emails and documents under scrutiny could be in any of a range of languages or even contain multiple languages within a single document. Insight is able to process documents in multiple languages and, more importantly, search them in multiple languages.

More Effective Compliance Through Technology

Thanks to the DOJ’s pilot program, corporations now have more incentive than ever to adopt strong compliance programs that include rapid and thorough responses to suspicious internal activity. As it turns out, the same technology that litigators already use to quickly get to the core of a case is equally adept at helping corporations get to the nub of an investigation. That could make all the difference in whether a corporation is prosecuted and what penalties it might face.

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John Tredennick, Esq., is the founder and CEO of Denver-based Catalyst Repository Systems, www.catalystsecure.com, which builds and runs the world’s fasted and most powerful software platform for complex e-discovery, regulatory investigations and compliance.