3 tips for carrying out your internal investigations | EDRM – Electronic Discovery Reference Model

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[Editor’s Note: EDRM is proud to collaborate with our Trusted Partner, Exterro, on this important benchmarking survey.]

There could hardly be more disparity in whether respondents use legal holds for internal investigations: about 1/3 use legal holds all the time, 1/3 use them occasionally and 1/3 never never or hardly ever use suspensions for internal investigations.

David R. Cohen, Partner and Chairman of the Records and E-Discovery Group at ReedSmith, and Chairman of the EDRM Project Trustees

And that’s just one use case. Human resources investigations of possible employee wrongdoing, legal department reviews to facilitate regulatory compliance, and investigations related to civil litigation also remain priorities. But given the private nature of internal investigations, most organizations don’t have the ability to benchmark their practices and capabilities and understand if they’re up to standard.

Fortunately, a new report from Exterro and EDRM (automatic download) addresses this blind spot. Based on survey data from over 70 respondents, representing 10 industries and companies with revenues of $1 billion a year, this report provides behind-the-curtain insight into how organizations uncover the facts about potential employee wrongdoing, regulatory compliance, litigation, and more.

Image Credit: Exterrro

What are the three main lessons that organizations can learn from the report?

Invest in internal investigative capabilities, including people, processes and technology.

Although surveys may seem rare, they are not. Nearly half (45%) of organizations with annual revenue over $1 billion found themselves conducting six or more internal surveys each month. Even with fewer surveys, the value of the technology in place is clear. Mary Mack, CEO and Chief Technologist at EDRM, explains, “It’s no surprise that large organizations conduct more internal surveys than smaller ones, but even a steady stream of one or two surveys per month requires a defined investigation process, dedicated technology and staff training.Between HR issues, regulatory compliance and cyber incidents, companies shouldn’t expect investigations to end anytime soon.”

Remember to consider the legal implications of internal investigations.

But surprisingly, not all organizations automatically link investigations with legal holds to preserve data. As David R. Cohen, partner and president of the Records and E-Discovery group at ReedSmith observes, “There could hardly be more disparity in whether respondents use legal holds for internal investigations: about 1/3 use suspensions all the time, 1/3 use them occasionally, and 1/3 never or hardly ever use suspensions for internal investigations. Considering that internal investigations are often a precursor to external investigations, legal claims, or other significant corporate actions, these results suggest that many companies could benefit from having more established and defined processes for their internal investigations. including the appropriate use of legal hold processes to secure information that could be or become important evidence in a legal proceeding”.

Advanced technology provides an extra layer of protection.

It’s one thing to have a solid process in place and investigators skilled in the issues facing IT, legal, and human resources. It’s a whole other thing to have cutting-edge technology like silent legal deductions and forensic toolkits in place. With these capabilities, organizations can increase the reliability of their processes. As Jenny Hamilton, General Counsel at Exterro, explains, “silent legal procedures offer advantages in contentious legal cases, preventing bad actors from spoofing relevant data, as well as inadvertently losing data.” And in terms of investigative capabilities, Justin Tolman, FTK Evangelist and former forensic investigator, says, “Many such investigations can have criminal implications, in addition to civil implications. Although internal investigators are not prosecutors, there is an advantage to collecting ESI knowing that they can meet the higher standard of proof required in such cases. It is better to have the data forensically collected and not need it than to need it and not have it.

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