Editor: As trust and expertise are important in dealing with white collar litigation and governmental investigations, can you share a little of your background and experience for our readers?
Gary: I began my legal career as a federal prosecutor with the Criminal Enforcement Section of the Tax Division from 2000 to 2006, where I investigated and tried tax fraud, money laundering and conspiracy cases. I then went on to practice as a criminal defense attorney for over seven years in an Am Law 100 law firm’s Washington, DC office, where I handled various matters involving, among other things, the FCPA, healthcare fraud, environmental criminal violations, antitrust crimes, mortgage fraud, and securities fraud. Recently, I joined TrustPoint International as the Managing Director of our White Collar Defense, Internal & Government Investigations group.
Tabor: I’ve worked in traditional litigation support for 25 years, and for the last 10, I’ve focused on collections of everything from paper to e-discovery in multijurisdictional and multinational complex litigations in about 45 countries. Currently I am charged with developing, deploying and managing the company’s mobile discovery lab and team of experts for support of multinational collections, processing and review.
Editor: Jenn, do you think that your experience practicing law sets you apart from others similarly situated in other companies who perform the services provided by TrustPoint?
Gary: Absolutely. Unlike most people in the e-discovery industry, I’ve handled and supervised countless internal investigations and litigation matters, and prosecuted and defended against various government enforcement actions during the course of my 13 years of practicing law prior to joining TrustPoint. I understand how critical every aspect of the e-discovery process – from collection to production – is to the outcome of a matter. The documents produced are ultimately the evidence that can win a trial or be the catalyst towards settlement. Therefore, attention to detail is paramount, and I am confident that I and my team here at TrustPoint can add tremendous value as a result of the skills that I honed while practicing law.
Editor: In proactively planning for potential investigations and litigation, what are some of the key considerations corporations need to make to be prepared?
Tabor: First, you want to define what type of investigation it is because each type has its own challenges. An internal investigation involving line employees requires one set of responses, while those involving the C-suite require you to craft a variety of plans while making political considerations. In an FTC or DOJ government investigation, it’s important not only to cooperate but also to have the appearance of cooperation, so the rapidity and the accuracy of the deliveries are first-priority considerations.
Gary: From a planning perspective, in-house legal departments and their outside counsel need to be focused on all of the places that their data is stored and on ensuring they have compliance programs and document retention policies in place so all electronically stored information (ESI) is secure and readily available when an investigation or litigation is initiated. Additionally, it behooves corporations or their outside counsel to have a company like TrustPoint on speed dial so that they have experts who can immediately assist them with the collection of their ESI, conduct an early case assessment, and process and cull the data in the most efficient and cost-effective manner.
Editor: Todd, in your extensive experience with internal investigations, what are some of the primary areas you ask clients about in your initial interview?
Tabor: We generally ask the following: Have you started looking at custodians? Do you have a data map? Do you have a data destruction policy? If so, is it enforced, and how? We also take a look at potential risk factors. Might there be a closet full of tapes somewhere that nobody knows about? Next, we need to understand the level of secrecy with which we should proceed. Do we need to be covert in our collection? Or, is everybody aware of the investigation such that we can move forward in a “sunshine” type of environment?
Editor: In your experience with governmental investigations, what are some of the primary attributes corporations are seeking from support providers?
Tabor: Corporations should look for service providers who can serve as consultants in the data collection and culling process and who understand the pitfalls of both over- and under-collecting. Flexibility is also a key attribute.
Gary: Todd is absolutely right. To be blunt, having practiced law for over 13 years, I can tell you that attorneys are generally not IT people. We rely on the expertise of litigation support providers, like TrustPoint, to help us develop the best strategy for collecting the ESI, processing it, reviewing it, and producing it in a timely manner, while maintaining defensibility and a clear chain of custody at every step in the process. And it goes without saying that corporations are looking for someone to manage the entire process who is reliable, responsive, highly efficient, and attentive to detail – someone who can really add value to their team of professionals.
Editor: Jennifer, in your previous role as the investigator and litigator-in-charge of these types of actions, what did you look for in a service provider?
Gary: As I mentioned earlier, discovery is such a critical phase in a case that your choice of service provider, and ultimately, the work that they perform, could greatly impact the outcome of the case. I say this because during discovery, each party and its counsel are evaluating the evidence that’s available. Oftentimes, cases are settled at the discovery phase. Having said that, as outside or in-house counsel, you are dealing with clients who want answers, and they want answers quickly. You’re really looking for a responsive service provider who understands and appreciates that at every turn you have time-sensitive issues with which you are dealing and who is attentive to your needs. You also want the service provider’s team to be efficient and conduct every aspect of the process in a manner that’s most beneficial to you and your client. And, of course, you want a service provider with significant and relevant expertise.
Editor: What are some of the topics/areas of interest in the media that highlight the importance of being prepared for investigations and litigation?
Gary: FCPA cases are a really hot topic, with the U.S. government being very focused on foreign corruption and bribery. We’ve also seen enhancements made to foreign anti-bribery statutes in countries such as the UK and China, and, more recently, the enactment of an anticorruption law in Brazil. There are a lot of moving parts in these kinds of cases, and you often must mobilize teams on the ground in other countries and collect evidence in foreign jurisdictions, which adds various levels of complexities. Another hot button for the government in recent years has been healthcare fraud and abuse and environmental criminal investigations. In any of these types cases, a corporation’s resiliency will often hinge on whether it had a logical and effective plan in place for an initial response to a criminal allegation or litigation.
Editor: Todd, you have extensive experience in international government investigations. How do TrustPoint’s processes help meet client objectives?
Tabor: I’ve worked on collections on several governmental investigations with multinational corporations. International collections require that we work through the many jurisdictional issues, cross-border concerns and other legal matters. We have a passport-ready, international collection team with deep-bench experience all over the world. We can set up and run the complete EDRM model – collection, processing, hosting and review – anywhere in the world in a matter of a few days. We typically wind up working shoulder-to-shoulder with the case team on these complicated engagements.
Editor: How do TrustPoint’s teams address differences in language and customs on these matters?
Tabor: Every country presents its own challenges in terms of both languages and customs. I’m proud to say we have native language speakers on our teams at all times – attorneys who possess not only subject matter expertise but also local language expertise. Our teams have managed reviews in China, Germany, South Africa, India, Indonesia and Japan, to name a few locations.
One of the things Jennifer touched on briefly is that there are certain foreign countries that are either not used to or have very little tolerance for the U.S. discovery system. One of our major objectives in helping our clients understand and navigate through this cultural difference is to work onsite with people in foreign jurisdictions and explain that while we may be gathering a lot of data, our focus is very narrow. We assure these individuals that their truly private data is protected. We all like to think our business computers are strictly for business, but we all keep some personal email, photos and correspondence on them. To have our machines suddenly pulled from us has a tendency to make us nervous. I was involved in a case in Moscow where we took the computer of a C-suite member, and he was extraordinarily upset because he believed there was personal, private information on his computer that was embarrassing both to himself and to the company. We sat down with him and a translator and explained what we were looking for and why, and that the machines, not people, would be looking for it, unless the system hit on a keyword. I believe it’s very important to have empathy for the human aspect of these situations and to know how to deal with them as they arise.
Editor: In your estimation, how does TrustPoint International differentiate itself from the many other service providers in the market today?
Tabor: In addition to TrustPoint’s expertise, I would say our level of service sets us apart. We pride ourselves on our ability to focus on our clients and to understand and even anticipate their needs. We’re able to generate creative solutions to fast-moving problems in the fluid environment of an investigation.
Gary: I think that’s right. Our dedicated team is intensely focused on understanding our clients’ goals and meeting their needs in the most efficient and cost-effective manner. I would also add that since joining TrustPoint, I have been extremely impressed with the technology that we have in-house, which is unique to our company. The technology that we can utilize to process our client’s data at the onset of an investigation or litigation is, in my opinion, a real game-changer. As practicing attorneys, in the early stages, we know what the big issues are, but we don’t know the details. Therefore, one of the challenges we are faced with is trying to come up with search terms that will help us to review the data and gain a better understanding of the case. Well, one of the investigative/analytics platforms that we use at TrustPoint actually identifies patterns in the data before there is any human input. It then creates graphics that show clusters of concepts being discussed by certain individuals/custodians during a specific timeframe, and the relationship between terms as used in a specific context. This information provides us with immediate insight into key search terms and key players, and allows us to make assessments very early on about irrelevant and insignificant data. As a result, it enables the entire team – outside counsel and its TrustPoint partners – to take a much more targeted approach to dealing with the information, which translates into time and cost savings for our clients.