This article focuses on the concept of ‘good governance’ as a proactive use of e-discovery.
In the past decade or so, the regulatory landscape of the UK has changed beyond recognition. There has been a marked increase in the regulatory burden upon companies, with increased scrutiny from the regulators, financial authorities and competitors.
The role of the “compliance officer” has moved from a back-room to a corner office job, and with good reason. On seeing the fines and reputational damage experienced by many large companies due to their failure to comply with regulations and the law, to, more recently, jail sentences for those who sought to circumvent the law, it is little wonder that companies are doing far more to ensure they comply with the law.
It is therefore very important that companies are able to demonstrate they have the correct policies and procedures in place to ensure compliance with the law. Appropriate policies are both preventative and curative: they reduce the risk of a breach occurring in the first place but, should a breach occur, they assist in mitigating the issues and cost to the company. But how can e-discovery help?
E-discovery can be used as a means of ‘stress testing’ a company’s governance and compliance procedures. For example, legal advisors can take on the role of the regulator or court to conduct mock ‘dawn raids’ on a company’s data and documents. To do this they would also use electronic review platforms to assist in sifting through the documents and data collected. We can also work with forensic accountants and experts who can conduct company audits to assess whether there are any issues that need to be resolved.
Once this ‘raid’ or audit has been completed, the legal team will then analyse and review the strength of a company’s compliance policies and help determine any weaknesses and / or loopholes that need to be closed. The legal team can be tasked with keeping the company informed of their current compliance obligations and can regularly re-test the company’s systems to ensure they are up to date with compliance.
On the back of these reviews, the legal team can assist with internal training. It can draft compliance manuals and so assist a company in strengthening its system of internal governance. This can be very important. If for example, a company fears corruption bribery or corruption accusation, having a strong anti-bribery policy and training regime can alleviate the risk of liability in respect of such offences, and this would pass only to the individual, or individuals, who took part in the action.
Given the volume of data that many companies now store, and the size of many organisations we understand how difficult it can be to ensure that the regulations and rules are being complied with across the board. However, by employing effective e-discovery to test and then help bolster your compliance regime, a company will both mitigate the risk of non-compliance and ensure they have a solid defence in place should any wrong-doing be uncovered.
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