All posts tagged ediscovery

Ediscovery trends in 2017: from artificial intelligence to mobile data centres


2017 is set to be a year of change as organisations prepare for the new General Data Protection Regulation (GDPR) and the accelerated adoption of artificial intelligence. Faced with the need to manage greater volumes of data as well as multiplying communications channels, organisations and their legal representatives will be increasingly reliant on ediscovery technology processes to reduce the time needed to identify and manage information required to satisfy regulatory and legal issues.

Against this backdrop, we make the following predictions for 2017:

  1. Technology will play a vital role in helping organisations prepare for GDPR

The tough new General Data Protection Regulation currently being implemented in Europe will have a global impact. In cross-border litigation and investigations, where data needs to cross borders to comply with discovery requests, mobile discovery will become essential.  These solutions capture, process, filter and examine data on-site, avoiding the need to transfer data across borders. GDPR has strict rules for protecting individuals’ right to be forgotten and organisations will need the relevant tools to find and erase personal data. Breaches of some provisions by businesses, which law makers have deemed to be most important for data protection, could lead to fines of up to €20 million or 4% of global annual turnover for the preceding financial year, whichever is the greater, being levied by data watchdogs.

  1. Ediscovery will find new homes beyond regulation and legislation

While ediscovery is widely used by professionals working on legal cases in litigation, regulation, competition law and merger control, employment law and arbitration, it will be used more and more this year in an anticipatory manner by organisations to identify, isolate and address any concerns about compliance that could expose them to the risk of some kind of intervention or sanction.  This trend will be exacerbated by the introduction of an increasingly complex and aggressive regulatory environment, exemplified by the French Anti-Corruption laws adopted in November 2016.

  1. New sources of evidence will move into the spotlight

Enterprises are creating more data than ever before. Data can be found anywhere that there are storage devices to hold it, whether that is a data centre, laptop, mobile, on wearable devices or the Cloud. Channels to move data from one place to another are also proliferating. As a result we are seeing a diversification of evidence sources being used to build up a picture of what has happened in a legal matter. Whilst email and structured data remain the most common sources of evidence, other data sources such as social media, satellite navigation systems are gaining in importance and providing key insights into many cases. Clients are increasingly choosing ediscovery providers who can integrate a wider variety of data sources into one platform for analysis.

  1. The robots are coming.

Savvy law firms and corporate counsel will benefit from bringing the latest technologies including artificial intelligence (AI) to the attention of their clients. A long line of court decisions in the US, and now also in the UK and Ireland has already driven greater interest in and adoption of predictive coding.

  1. The ediscovery industry will continue to evolve

The past few years have seen huge changes in the ediscovery industry itself as it seeks to provide the technologies that organisations need to keep up with more stringent regulation in data governance. Only larger, international partners now have the resources and capabilities required to provide local services and data processing centres where organisations need them, together with cutting edge tools and technologies to manage huge volumes of data and channels moving forwards.

  1. Big data will take centre stage in competition and data privacy matters

Regulators are becoming increasingly aware of the competition and data privacy implications of big data. From a competition point of view, big data held by companies can trigger both Articles 101 (relating to antitrust cases) and 102 TFEU (abuse of dominance cases). This is highlighted by the joint report of May 2016 from the French and German Competition Authorities entitled Competition Law and Data which explains that big data can trigger article 101 TFEU and thus be considered a cartel. Companies that handle substantial data volumes on a day-to-day basis will need to factor it into their compliance strategies and embrace technological solutions to aid in investigations and redactions.

  1. There will be a greater need for electronic documents

Despite evidence becoming mostly electronic, until recently regulatory authorities still required the submission hard copies of RFI forms, merger filings and other investigatory materials. However, the introduction of the European Commission’s eQuestionnaire for merger control and antitrust cases means parties must now submit all information electronically.

In December 2016, the EC has also recently published guidelines entitled “Recommendations for the Use of Electronic Document Submissions in Antitrust and Cartel Case Proceedings”. It is important to note that the EC strongly encourages the use of electronic formats even for paper documents which means they have to be scanned and made readable.

Tim Philips, Managing Director at Kroll Ontrack, said: “Ediscovery continues to provide essential tools and technologies for all manner of legal matters and allows companies to efficiently navigate through this era of big data, regulatory scrutiny and more stringent data protection requirements. 2017 is set to be another landmark year in terms of the adoption of ediscovery technology and the evolution of ediscovery technology itself.”

New Frontiers in Ediscovery

We are very excited to be launching the inaugural edition of our report entitled: ‘New Frontiers: An Insight into the global expansion of ediscovery.’    The report contains a compendium of 15 articles focusing on how ediscovery is being carried out in various countries around the world.  We have also have included a series of feature articles examining:

  • how ediscovery technology is being used to detect cartels
  • what uses are being found for ediscovery technology in the financial services sector
  • the latest trends in computer forensics
  • new technologies in ediscovery.

Ediscovery has evolved from its origins as a legal procedure used primarily in the USA and UK in litigation matters. Kroll Ontrack’s global expansion over the past ten years has shown there is demand across Europe and Asia for ediscovery technology to search for and review electronic evidence, particularly for competition matters and internal investigations. Download the full report here >>

What does ediscovery look like in 2015?

We asked our global network of legal consultants to report in depth on the state of ediscovery in their respective countries, providing insight into global trends around ediscovery adoption, uses and advances in technology.

The New Frontiers report documents how ediscovery is becoming an important element of the business landscape, even for countries that do not have an obligation to provide ediscovery as part of their legal framework. The important drivers for these countries, including Germany, France, the Netherlands, China and Singapore are more likely to be related to increased scrutiny by regulators, the transparency and compliance agenda, the need to manage mountains of big data and the overriding requirement to reduce legal cost.

Tim Phillips, Managing Director of Kroll Ontrack International Legal Technologies, commented:

“As a leader in the global industry, we believe it is important to document these changes and to highlight ediscovery’s rapid growth as a problem-solver for everything from regulatory compliance to dealing with dawn raids, and from unbundling legal services to forensic investigations.”

The New Frontiers report is available in full here.

The Certainty of Information Governance’s Uncertain Future


As I approached the Waldorf Hilton’s main entrance, my umbrella struggled and lost its battle with the cold, slicing rain. The doorman, smartly dressed in a bonded overcoat and bowler hat, directed me into the Palm Court and to the 10th annual Information Governance & eDiscovery Summit. Most attendees milling about the room seemed to pay little mind to the meteorological events beyond the room’s frosted double doors, and why would they? The only evidence of the weather was an occasional faint clap of thunder. They were focused on refining and perfecting existing information governance (“IG”) strategies. Perhaps it was my twisted umbrella, but I couldn’t stop wondering if the weather signalled the need for a new approach to IG.

IG can trace its roots to medical recordkeeping in the 1990s. Faced with ‘the development of information technology and its capacity to disseminate information rapidly and extensively,’ the National Health Service commissioned The Caldicott Report to address the tension between the need to share information versus patients’ expectations of privacy.

In the ensuing decades, IG grew from a niche healthcare concern into broad-based principles applicable to organisations across all industries. A few key points in IG’s evolution include:

  1. The NHS created and implemented its 2003 IG Toolkit “to enable organisations to measure their compliance against the law and central guidance and to see whether information [was being] handled correctly.”
  1. ARMA sought to take the general concepts underpinning the IG Toolkit and expand their applicability to all organisations, regardless of type or activity, with its 2009 Generally Accepted Recordkeeping Principles®.
  1. The collaborative efforts in 2011 and 2012 between ARMA and EDRM culminated in the updated Information Governance Reference Model which highlighted the fact that efficient, effective IG comes from “the relationship between duty and the value of information assets.”
  1. With the 2013 Practice Direction placing limits on costs in disclosure and the 2015 proposed FRCP highlighting proportionality and preservation, two leading countries’ procedural laws now systemically advance IG principles.

Today, at its core, IG is “an accountability framework to ensure appropriate behaviour in the valuation, creation, storage, use, archiving and deletion of information.” Organisations which fully utilise IG will be able to better respond to anticipated, as well as unforeseen business realities, whether in regulation, investigation, or litigation. While good in theory, in practice the adoption of an IG programme is difficult as organisations not only have to seek buy-in across departments and amongst individuals but must also make commercial arguments for the value of IG. Too often, IG, like ediscovery, is brushed aside, relegated until a specific need presents itself.

 Even when organisations do embrace IG, successful use is becoming more difficult as information continues to grow. A key tenet of IG is information disposition; and, “[i]n order to dispose of any form of information, organisations need to know the value of that information.” How practical in today’s business world is it for organisations “to know the value of [its] information”? With the explosive growth of structured and unstructured data as well as the bottom-line drive toward profit, what organisations have the means to enact version control; label, tag, and otherwise organise files and emails; control the number of chat systems used; keep personal and business communications separate; archive audio and video data; etc.? ‘Information management and governance tasks are viewed as an anathema.’

None of this is to suggest IG’s time has passed, and in fact, most “[i]ndustry experts are optimistic about the future of IG.” Rather, we need to align IG with the big data realities of the modern world. Within an ediscovery context, organisations have begun using predictive coding and other advanced analytics as well as using multi-matter management repositories to help retrieve information more efficiently and accurately than previous methods. Could analogous technologies help transform IG? Imagine a world where there was no need to ever delete data, everything was stored securely, and through human-trained artificial intelligence, anything an organisation needed could be quickly and easily found.

As I thought back upon the two days of the summit, I was struck by the calibre of the attendees. It is a rare thing to have so many leading individuals and organisations all in one place, working together to move the conversation forward. Before I exited the hotel after the final session, I stopped briefly to admire the Palm Court’s oversized skylight, casting diffuse light upon the sunken tiled floor. The room has remained largely unchanged since its construction over 100 years ago. In the world of technology, few things last quite so long. What will the future hold for IG? Will the iterative process of improvement continue, or will disruptive technologies enter the fray?

I looked at my umbrella, almost tossing it into the rubbish bin beside the front doors before thinking better of it, and I put my sunglasses on. The clouds had parted, and oranges and magentas filled the sky to the west. Such is the weather of London, ever-changing. But in that is a comforting certainty: ‘adapt . . . or scramble when the torrent falls’.

About Jeff Shapiro

Jeff joined Kroll Ontrack in July 2013, working as a Case Manager within the Legal Technologies practice group. In October 2014, Jeff was promoted to the newly created role of Managed Services Consultant. He provides end-to-end project management and consultancy for ediscovery and edisclosure clients, with emphasis on Fortune 500 companies, as well as Am Law 200 and Global 100 law firms. Jeff ensures that projects are carried out to the highest possible standards, within relevant timelines, and to the specification and cost as agreed with the client. He consults on the technical requirements of Civil Procedure Rules and practice direction, including disclosure forms, production formats, predictive coding, and Case Management Conference planning. Jeff specializes in commercial litigation, regulatory commission requests, and internal investigations, with emphasis on early case assessment and review strategy. Whilst with Kroll Ontrack, Jeff developed a ‘Case Management Manual’ to capture and consolidate existing procedures, document unwritten knowledge, and identify cost-efficient opportunities to enable a consistent and high-level of service to clients. Prior to moving to the UK and joining Kroll Ontrack, he worked for several years with leading law firms in their international ediscovery practice groups. Jeff received his Juris Doctorate from The Syracuse University College of Law, and he is licensed to practice law in the State of Virginia.

Celebrating the launch of our French data centre

On 19th March 2015, 119 of France’s leading authorities on international litigation, labour, competition and IP/IT gathered at the historic Hôtel Plaza Athénée to celebrate the launch of Kroll Ontrack’s new French data centre and share best practice on controlling risks related to electronic data. With representation from international law firms and internal counsel of global corporations, the event’s popularity highlighted the growing importance of successfully managing investigations and litigations involving high volumes of electronic evidence.

The highlight of the evening was a lively roundtable discussion focusing on the role technology plays in safely guiding companies through investigations involving electronic evidence. Moderated by Kroll Ontrack’s Thomas Sely, speakers Winston Maxwell (partner, Hogan Lovells, Paris office), Florence Raynal (CNIL) and Isabelle Hautot (Orange Head of litigation) discussed the topic in depth, each one offering a unique perspective on the investigative process as lawyer, regulator and corporate director respectively.

A full report on the panel discussion, is being prepared and will be published in due course. However, the broad conclusions of the panel’s discussion were as follows:

  • There is a difference between the US discovery process and ediscovery technology and the two are often confused; the technology is simply a tool that assists document review, whether this is for an internal investigation or part of litigation or any case with high volumes of documents to review. The applications of ediscovery technology are not limited to US style discovery cases.
  • Accountability during the discovery process is of utmost importance to protect intellectual property. When selecting ediscovery service providers, companies and law firms should ensure that the ediscovery provider has the proper processes in place to secure data.
  • Data should be filtered and processed within the country of origin for data protection purposes. Kroll Ontrack’s new data centre will be welcomed by companies who would prefer their data to stay within France in order to comply with local privacy laws.

After a question and answer session, attendees continued the conversation less formally at the champagne reception that followed.

We would like to thank our guests for taking the time to attend the evening, especially our speakers whose experience and opinions sparked so much discussion. It is clear that how electronic data is handled is of increasing importance in France and we anticipate that with the recent opening of Kroll Ontrack’s French data centre that more firms and companies will take advantage of what ediscovery technology has to offer in a wide range of cases from compliance and investigations to litigation and arbitration, both domestically and internationally.

Our new Document Review centre

­It is an exciting time at Kroll Ontrack, because we are expanding our document review service in Europe. In particular, we are in the process of opening our own dedicated review facility in central London. But we are not new to this. Since 2008, Kroll Ontrack’s clients have been using our expert contract lawyers for review exercises in litigation matters and competition investigations.

One of the great things about using Kroll Ontrack’s lawyers to supplement a review team is that not only do our professionals come with fantastic legal and language skills; they are also the experts in the review technology.

Having completed scores of reviews on Review (and previously Ontrack Inview), our review teams know the platform back-to-front, meaning that they are able make the most of the technology, and actually perform a review in a way that is much more efficient than someone who only carries out a disclosure exercise or investigation every now and then.

With all this growth, we are seeking further people to partner with us on document review exercises. If you are a lawyer or a paralegal who would like to work with our clients on high-profile litigation matters, regulatory investigations and internal investigations, we would love to hear from you! You will be working closely with top international law firms and Kroll Ontrack’s technology experts. To register your interest in working with us on such projects, please click here.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

The Little Things

Whether it’s zed rather than z, lawyer in lieu of attorney, or philosopher instead of sorcerer, it’s often the little things that separate the UK from the US. Over the last year whilst living in the UK and working for Kroll Ontrack, I’ve grown accustomed to how much the little things can make the difference in not being considered a ‘loud-mouthed yank’.

The same goes for ediscovery… err, edisclosure. The subtle asymmetry between the UK and US disclosure schemes requires distinct procedures and flexible project management. In the US, the scope of discovery is expansive, constituting “any nonprivileged matter that is relevant” (i.e., “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”) “to any party’s claim or defense,” whereas in the UK, the court has a menu of options at its disposal to limit disclosure “to that which is necessary to deal with the case justly,” going so far as including “an order dispensing with disclosure” altogether.

In the situations where disclosure does exist, it’s important to recognise our client’s specific needs under the requisite procedural rules. In the US, parties are under the duty to state their “views and proposals on . . . any issues about disclosure or discovery of electronically stored information.” Compare that broad obligation to the UK pre-Case Management Conference rule requiring parties specifically to discuss technical issues, such as:

  • the use of keyword searches
  • the use of software tools
  • the methods to be used to identify duplicate documents
  • the use of data sampling
  • the formats in which electronic documents are to be provided

The ultimate purpose of these discussions is to serve “the overriding objective of enabling the court to deal with cases justly and at a proportionate cost.” At Kroll Ontrack we can advise our clients on the best tools and techniques to consider in order “to reduce the burden and cost of disclosure,” and we provide transparent pricing to allow our clients to fulfil their duty to the court.

Beyond us understanding what our clients need, we also should be mindful of what our clients want. Time and again it’s the little things that keep clients satisfied and help grow long-term relationships. With our new review platform, Review, we’ve addressed a few of them: cut-and-paste functionality between Review and outside applications, the ability to quickly and easily control hosting costs with text- or native-only processing, and one of the most-often requested features, a straightforward sign-on process. When you think about it, the sign-on process should be as easy as possible, enabling our clients to log-in securely and quickly and letting them get to what actually matters. Edisclosure is difficult enough without having to remember a secret handshake and a knock, tap, knock-knock on the door. Now you just put in your username, case name, and password, and Bob’s your uncle!

Every day we strive to make edisclosure elementary. After all, it’s the little things. How we can make edisclosure simpler for you?

About Jeff Shapiro

Jeff joined Kroll Ontrack in July 2013, working as a Case Manager within the Legal Technologies practice group. In October 2014, Jeff was promoted to the newly created role of Managed Services Consultant. He provides end-to-end project management and consultancy for ediscovery and edisclosure clients, with emphasis on Fortune 500 companies, as well as Am Law 200 and Global 100 law firms. Jeff ensures that projects are carried out to the highest possible standards, within relevant timelines, and to the specification and cost as agreed with the client. He consults on the technical requirements of Civil Procedure Rules and practice direction, including disclosure forms, production formats, predictive coding, and Case Management Conference planning. Jeff specializes in commercial litigation, regulatory commission requests, and internal investigations, with emphasis on early case assessment and review strategy. Whilst with Kroll Ontrack, Jeff developed a ‘Case Management Manual’ to capture and consolidate existing procedures, document unwritten knowledge, and identify cost-efficient opportunities to enable a consistent and high-level of service to clients. Prior to moving to the UK and joining Kroll Ontrack, he worked for several years with leading law firms in their international ediscovery practice groups. Jeff received his Juris Doctorate from The Syracuse University College of Law, and he is licensed to practice law in the State of Virginia.

A few minutes of fame

It has been a very exciting experience to star in this film together with my colleagues Birte Ellerbrock, Helmut Sauro and Chris Johnson – I really felt like a Hollywood star for a few minutes!  I also realise I have joined Kroll Ontrack at a turning point and that things happen very quickly here: first, a new data centre in Frankfurt, second, a new mobile ediscovery solution, what’s next?

I did not think it would be so challenging to learn the script off by heart and to then reproduce it in front of a fully-fledged camera crew. But probably the most unexpected was the reaction from my work colleagues after I had finished filming and was still wandering around the office with make-up on my face – that had been applied beforehand (during a 15 minute make-up session!) for the filming…reactions that words unfortunately cannot describe. Welcome to a day in the life of an ediscovery consultant!

Ein paar Minuten Ruhm

Es war eine sehr spannende Erfahrung in diesem Film gemeinsam mit meinen Kollegen Birte Ellerbrock, Helmut Sauro und  Chris Johnson mitwirken zu dürfen – Ich habe mich wirklich ein paar Minuten lang wie ein Hollywood-Star gefühlt! Mir ist auch klar, dass seit dem ich für Kroll Ontrack tätig bin, befindet sich alles an einem Wendepunkt und es passiert alles sehr schnell: zuerst ein neues Rechenzentrum in Frankfurt, nun eine neue mobile Ediscovery-Lösung, was kommt als Nächstes?!

Ich hätte nie gedacht, dass es so eine Herausforderung wäre den Text auswendig lernen und dann vor dem gesamten Filmteam sprechen zu müssen. Interessanterweise aber kamen die unerwarteten Reaktionen von meinen Kollegen erst nachdem das Drehen zu Ende war, als ich im Büro umherwanderte immer noch mit Make-up im Gesicht – vor dem Filmdreh hatte ich nämlich eine 15-minütige Make-up Session erdulden müssen…Reaktionen, die die Wörter leider nicht beschreiben können. Willkommen im Leben eines Ediscovery Beraters!

About Thomas Cavro Dupont

Thomas Cavro Dupont is a Discovery Services Consultant at Kroll Ontrack in the EMEA region and is based in Germany. He advises lawyers around Europe and their clients on how to effectively manage electronically stored documents in matters such as competition, litigation and internal or regulatory investigations. Before joining Kroll Ontrack in 2014, he worked as an Associate in leading international law firms in Brussels, Paris and Madrid advising clients on competition law issues. Thomas also worked as a Project Manager for a major ediscovery provider in London specialising in ediscovery projects in the antitrust and finance areas. Thomas, who is legally qualified in Spain and France, obtained his Law Degree from the Universidad Pontificia Comillas in Madrid and received an LL.M. in European Legal Studies from the College of Europe in 2009. His native languages are Spanish and French and he is fluent in German and English.

What is my Refrigerator Doing on the Witness List?

The custodian list on the last edisclosure matter I worked on involved 6 custodians and looked similar to this:

Rob Alexander
Tom Jones
Chris Van Winkle
Danielle Chapman
Marketing Groupshare (H: Drive)
Marketing Collateral (paper)

In the near future, I expect it could look like something like this:

Rob Alexander
Samsung RB RB31FERN Fridge (s/n: 763423253RB)
Britannia Q Line Dual Fuel Cooker (s/n: R-454712131D)
KitchenAid Pro Line Toaster (s/n: KMT4945603CA)

Why? Well, because your employment matter might depend on the times Rob made cheesy toast and the smart toaster might be the only evidence available. Or the product liability matter against your client might depend on the pool of structured data collected by temperature sensors in refrigerators across England and communicated to the manufacturing database. Alternatively, your malpractice case might hinge on the communications between medical devices.

The Internet of Things (IoT) has exploded. Not literally of course, but IDC, a global market intelligence firm, estimates in an infographic that at the end of 2013 there were 9.1 billion IoT units installed globally and given the projected rate of growth by the year 2020 there will be 28.1 billion units contributing to the IoT and adding to the amount of discoverable data in the world. Gartner, the technology and research firm, states in a study that the technology and storage infrastructure in existence now may not be sufficient to hold the enormous amounts of data generated by the IoT.

As businesses are encouraged to reap the benefits of the IoT and technological advances make analysing big data easier and faster it’s only be a matter of time before this data is called upon as evidence to make a case. I am not advocating the immediate collection of appliance data, nor serving your client’s kitchen with a preservation notice, but the idea that email, loose files, and the occasional bankers box of paper is the bulk of your data sources is an outdated one.

So have a serious think about what types of data your client owns and where it resides, because as the IoT grows it may very well be everywhere.


About Orion Wisness

Orion provides consultancy and training to assist clients with the identification, preservation, collection and analysis of potential evidence in document intensive cases. He advises clients on strategies and techniques to help lawyers and corporate clients deploy technology efficiently and cost effectively, as well as assisting them in the fundamentals of document reviews, the design of practical workflow processes and the selection of the technical solutions required to fulfill these goals. He is frequently called on to comment on best practices and new developments in the electronic disclosure and discovery industries.

Ediscovery anywhere, Ediscovery now: New ediscovery Solutions for Germany

We are excited to announce the launch of in-country ediscovery processing capabilities in Germany, thanks to our new state-of-the-art and highly secure data centre, located in Frankfurt. We are also proud to announce the recent launch Onsite™, a self-contained, on-premise ediscovery solution.

This now provides us with the flexibility to process and host data for our German clients either in country or within the confines of a company’s own infrastructure without sensitive data ever having to leave German borders. Our German clients can now successfully meet ediscovery obligations while minimizing security and data privacy challenges.

For more information see our press release here.


Ediscovery überall Ediscovery jetzt

Neue ediscovery lösungen für Deutschland


Wir freuen uns, Ihnen heute die Eröffnung unseres Hochsicherheits-Rechenzentrums in Frankfurt am Main verkünden zu können. Zusammen mit der vor kurzem auf den Markt gebrachten mobilen Lösung Onsite™ – gedacht für den Einsatz vor Ort beim Kunden – haben wir damit unsere Ediscovery-Kapazitäten in Deutschland entscheidend erweitert. Wir können nun Daten unserer deutschen Kunden im Land oder sogar innerhalb der abgegrenzten Infrastruktur eines Unternehmens bearbeiten und speichern. Unsere Kunden können ihrerseits mit diesen Lösungen ihre Verpflichtungen im Rahmen einer Ediscovery unter Berücksichtigung der Anforderungen an die Datensicherheit und den Datenschutz erfüllen.

About Tracey Stretton

Tracey Stretton is a legal Consultant at Kroll Ontrack in the UK. Her role is to advise lawyers and their clients on the use of technology in legal practice. Her experience in legal technologies has evolved from exposure to its use as a lawyer and consultant on a large number of cases in a variety of international jurisdictions.

The Age of Corporate Anti-Corruption Compliance

Bribery and corruption is a growing concern for businesses in all sectors and jurisdictions, although some involve greater risks than others. All companies should consider themselves open to scrutiny by authorities. With the effects of social media, news continues to linger and reach more people than through traditional news outlets, potentially exposing companies to reputational damage. Companies also risk enormous fines, legal and investigative fees, which, combined with the steep costs of monitorship, means that a proactive approach to compliance is essential.

Snapshot of Global Standards

Despite a global marketplace, there is no international anti-corruption law and standard. The relevant laws in different countries and regions are complex and diverse. While anti-corruption laws are becoming more robust in many jurisdictions, the UK Bribery Act (known by some as “FCPA on Steroids”) now represents the most expansive and stringent anti-corruption law in the world, even compared to the US Foreign Corrupt Practices Act (FCPA). Along with national laws, companies should also be aware of treaties under the United Nations and the Organisation for Economic Cooperation and Development (OECD) in order to present evidence of a broad approach to compliance.

While anti-corruption laws may vary around the world, common requirements of these laws form the backbone of any compressive compliance programme. To effectively prevent and detect issues of corruption, bribery, and fraud in international business, compliance has to be an active part of the organization and culture. It is a continuous and ongoing process that requires nurturing, monitoring and maintaining. This requires a paradigm shift in activity, moving away from reactive fire-fighting to the proactive management, prevention and detection of corruption and compliance risks.

What Global Companies Should do to Prevent Potential Liability

What does the increased enforcement of the FCPA and UK Bribery Act mean for ediscovery? First, in any matters that are international in scope, you will need to comply with data privacy regulations. Depending on the type of investigations, the collection of documents can be from custodians scattered around the world. The varied documents (emails, financial records, or expense accounts, for example), may be written in different languages. Relevant information might also be stored in different media sources. Finally, determining what information to search for can be difficult, since you will need to show evidence of the absence of corruption. Given these challenging parameters, the best course of action is to get a sense of the potential scope of review as quickly as possible.

Given the regulators’ ongoing focus on compliance with global anticorruption legislation, conducting targeted due diligence and proactive audits is increasingly critical for companies involved in cross border transactions. With technology and tools, companies can develop proactive strategies to confront the rising global tide of enforcement of anti-corruption laws. Companies who understand this and pledge resources to ethics and compliance programs, can navigate their company away from icebergs and on to safer shores.

About Tina Shah

Tina works at Kroll Ontrack as a Legal Consultant in Continental Europe. Tina has a variety of experience in the legal sector, including working as a lawyer for a global project management firm organised to provide comprehensive consulting services for FDA regulated companies and conducted extensive e-disclosure/document review for high profile litigation cases. Tina is a US-qualified lawyer and fluent in Italian and Spanish.