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Legal Tech: Preparing for Internal Investigations to Mitigate Risk
No one welcomes the prospect of an internal investigation. Even a relatively narrow and focused investigation can feel like a distraction from day-to-day business. Broader investigations can become complicated exercises requiring investigators (and sometimes outside counsel) to work with multiple departments and stakeholders, struggle to manage disparate workflows, and sift through mountains of data to arrive at the truth.
While complaints to HR alleging discrimination or harassment based on race or gender are among the most common triggers of an internal investigation, other triggers run the gamut. They include whistle-blower complaints alleging compliance violations or corporate fraud, the loss or theft of physical assets, leaked or stolen data containing sensitive or personal information, and leaked or stolen intellectual property.
The stakes in these matters can turn out to be very high. A purely reactive approach to investigations can not only cause delays in determining the truth, but also increase the likelihood of runaway costs and damage to the company's reputation. On the other hand, companies can often respond effectively if they proactively plan for investigations and leverage technology that can comb through large amounts of data quickly at low cost. These organizations have a much better chance of avoiding prosecution, large fines, substantial damages, erosion of employee morale, and negative publicity.
Investigations Are Often Legally, Logistically and Technically Complex
In most traditional litigation, attorneys can proceed from a known set of facts and have a clear roadmap to follow. Compared to litigation, internal investigations can be quite open-ended and unpredictable — you may not even have a date range in which alleged wrongdoing may have occurred, for example, and in some cases you may not know ahead of time who is likely to be involved or which custodians to focus on. Investigations are also highly context-specific, requiring very different approaches depending on the nature and seriousness of the complaint or allegation. Several different departments may need to be involved in addition to legal — HR, IT, finance, and compliance are common examples — each with their own workflows and applications. Also, while investigations often end without becoming the subject of litigation, investigators must always be prepared for that possibility. That means carefully documenting their activities and the chain of custody so the evidence they gather will be admissible in court.
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