Following our first series of articles on ‘interrogation of big data’, our next series takes a closer look at proactive e-discovery and the practical application of some of the tools previously discussed. Proactive e-discovery is a form of ‘risk management’. By taking action either before any potentially harmful event occurs, or after it has occurred, but before it is brought into the public domain, companies can avoid or mitigate the potential fallout.
This article focuses on the scenario where a company suspects it has been the victim, or perpetrator, of anti-competitive or illegal behaviour.
From a perpetrator’s perspective proactively using e-discovery may prove essential to mitigating potential claims against the company. For example, if, after a thorough audit of its system, the company realises that employees have been taking part in potentially anti-competitive or illegal behaviour it can seek early advice from legal advisors as to the best course of action. The earlier anti-competitive behaviour is discovered, the greater the options available to a company, including whistle blowing, applications for leniency and the general possibility of reducing reputational and financial damage. However, it would not prevent the perpetrator from being brought in as a defendant to any subsequent litigation by victims of the anti-competitive behaviour.
From a victim’s perspective, e-discovery can assist in analysing a company’s systems for any evidence of pressure created by external bodies acting in an illegal or anti-competitive manner. For example, investigators can search for records of competitor’s price increases in a company’s system or correspondence with the competitor company indicative of a cartel. Should any such evidence be uncovered by the review, this can be analysed by a legal team to assess what course the company should take against the external body, whether this be blowing the whistle on their behaviour, or commencing a damages claim.
There are numerous benefits to acting in this this proactive manner. Acting before the event may prevent the company from inadvertently becoming a participant in the anti-competitive or illegal behaviour. Additionally, taking action before any potential wrongdoing is brought into the public domain could protect a company’s reputation. If wrong-doing on the part of another entity is found, it affords a company the possibility of seeking damages from the other entity should any harm have been caused by their actions.
So where does e-discovery come in? Due to the nature of illegal or anti-competitive behaviour, it is probable that any perpetrator either within or outside of the company would attempt to keep any action clandestine and ‘off the record’. However, in the world of e-discovery, ‘off the record’, whether it be by telephone, text or instant message, is never truly undetectable.
It is for precisely this reason that, if a company does decide to take proactive steps to monitor for anti-competitive behaviour, it employs tools that are appropriately sophisticated for the task, such as e-discovery which can look into all forms of data be they on, or off, the company’s main system. We discussed in our earlier articles some of the tools that may be employed in this task, such as communication mapping, key word searching or predictive coding.
Using e-discovery in this way is, therefore, an effective way of assessing a company’s systems before any potentially bad behaviour comes to light, managing the risk of any potential action either against or on behalf of, the company.
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