Top 10 Operational Tips: Preparing for Regulatory Investigations
1. Clearly define roles and responsibilities
To ensure that your team is ready to respond and change directions quickly roles and responsibilities should be defined as early as possible. Regulatory deadlines will be extremely tight.
2. Establish a war room/dedicated team
Include all service providers including inside and outside counsel, internal business leaders, technology support partners, eDiscovery and legal processing outsourcing (LPO) providers
3. Urgently compile and circulate a preservation/legal hold notice
To preserve all potentially relevant documents and sources of documents - including the consideration of the suspension of routine destruction/disposal procedures.
4. Maintain audit logs
Detailing criteria for arriving at the composite data set including decisions taken and restrictions imposed (and the reasoning behind them) along the way. Also record officers/people involved in the investigation, noting their rank, role and objectives
5. Put measures in place to protect legal and or regulator privilege
Inform all downstream partners of these decisions and have specific attorney on point to answer all questions for consistency and repeatability
6. Create a data map and central data request methodology
The data map should include all likely sources of relevant material including hot-spots and weaknesses, such as individual devices (BYOD) and social media (e.g. What's App) - to capture information that is only held locally. Ensure everyone understands the data map. Create a central repository of all documents (to be) collected and method for collection for all streams of the investigation.
7. Collect wide
Facts discovered at other industry participants in a street sweep will instantly turn into "prove you are not guilty" scenarios. Therefore, the best way to prove a negative is to demonstrate that you have considered huge swathes of data - use technology and smart review processes to provide focus.
8. Prepare reference documents to assist with key document review
In respect to knowledge transfer, quality and consistency, including:
- List of relevant employees and their rank/role at the relevant times
- Glossary of relevant jargon and acronyms
- Copy of regulatory request ( if approved by counsel)
- Explanatory note detailing the background to the investigations, the objectives, strategy etc. (extent of circulation to be determined by the "inner core" team, but this might be appended to the legal hold notice)
9. Establish a reporting and communication regime
Set up a method to track deliverables and report for each individual work stream, and consolidate reporting for senior/executive leadership teams. Ensure coordination and effective communication through regular meetings. For example:
- Defined reporting to internal management / Board of Directors
- Weekly roundup meetings for each work stream
- Investigation wide, status meeting every 2-4 weeks.
- End of quarter deep dive session to review of all work streams including status, and potential road blocks, etc.
10. Put in place robust document review processes
- Efficient workflows - overlap and work duplication can unnecessarily add to cost and turnaround times , e.g. if a particular custodian's data is about to be reviewed for a specific stream, consider if a second stream may also need information from the same data, to enable a review team to look out for both issues during a single review
- Escalation procedures - to deal with the inevitable queries or requests for clarification during document review or any other part of the process.
- Appointing a single person or team to be responsible for outward production of documents - to maintain consistency and the integrity of the process.
