Government Investigations in E-Discovery

One of the biggest fears an organization faces is a government issued subpoena. This is NOT the point at which you should begin data collection as it is both costly and time consuming, because unlike traditional litigation there is no negotiation in the scope of discovery and prevention. At this point you have to consult the counsel, whose role is to advise the client on the collection and production of pertinent data. These types of data include ESI, which is defined as any electronic form that may be subject to production under common E-Discovery rules.

Generally speaking, most subpoenas that lead to requesting production of information is done by one of its cabinet based agencies. These agencies include; the SEC (Securities and Exchange Commission), the DOJ (department of justice) and the private corporation FINRA (Financial Industry Regulatory Authority). These subsectors of the U.S. Government are important to E-discovery and play a pivotal role in the compliance of data delivery. The Counsel relies on third party source providers in this field to respond to these inquires.

These agencies can be intimidating if your business receives a subpoena for investigation. To make sure you stay compliant you should be aware of the following guidelines. In DOJ E-Discovery there has been a new ESI Discovery protocol implemented in February of 2012. The protocol has goals that include promoting uniform best practices for recurring issues and protecting the security of sensitive information produced as discovery.

As a client you want to protect yourself from producing incriminatory evidence unintentionally. This does not mean that you shouldn’t comply with the FCPA program requirements, Instead companies should adhere to the rules as it may result in mitigation credits or escape of prosecution entirely. The key is to disclose all the facts relevant to the wrongdoing to the DOJ, but not more than is required by the FCPA pilot program. This is where E-Discovery providers step in to streamline the collection of relevant data and to discard data that is irrelevant. This in return motivates corporations to have more strict compliance programs in place in order to legally protect themselves by expediting the process of a government investigation and protect themselves from unnecessary prosecution. This can result in a huge difference in penalization when it comes to producing ESI data to a prosecutor.