Internal investigations - 6 tips on collecting documents during the COVID-19 pandemic

Conducting internal investigations during the pandemic presents a number of significant barriers. The processes used in the “old normal” may not be fit for purpose in the current stage of the crisis even though lockdown measures appear to be easing.

Collecting and reviewing documents and data is but one example. Continued restrictions on international travel and the inability (or unwillingness) of staff to access offices and storage facilities may affect a company’s ability to collect all relevant documents and data.

Here are 6 tips for running an effective data collection and review programme during the outbreak.

1. Prepare prepare prepare – data mapping is crucial. This has always been a key mantra for any internal investigation - but given the complications around accessing documents it is imperative that a comprehensive custodian and data map is prepared outlining the location and recoverability of physical and electronic documents and data.
2. Suspend all document destruction policies. Easier said than done currently! This requires a detailed consideration of the IT architecture that a company has. Engage with the in-house IT team or the outsourced IT provider urgently so that those with the relevant “key” can “lock” the data down. As for physical documents – do employees now have relevant documents at home
3. Physical documents – consider creative ways to collate hard copy documents. With the lockdown easing, the ability to collate hard copy documents is admittedly becoming somewhat easier or at least possible. If they can be collated safely, give careful consideration to where the physical documents should be delivered. In the current circumstances that may not be a law firm’s offices. Consider whether it is necessary or cost-effective to digitise the data via scanning software given that the days of review teams being based in one central location is arguably many months away. Is there a secure hub nearer where reviewers live which they can access in a COVID-safe manner? If, however, collecting physical documents cannot be done safely, companies should carefully consider how to preserve and secure them so that they can be recovered at a later date.
4. Electronic documents and data - speak to an IT forensics specialist as soon as possible and get them involved early in the data mapping process. This is one particular area where technology can be your friend. There are many ways in which IT forensic teams can help companies collate data in a remote way. This can range from the traditional attendance at offices to “image” data in person (albeit on a socially-distanced basis) to full forensic copying over the “pipes” of the relevant data.
5. Personal devices – the need for robust IT policies. Hopefully the company under investigation has a robust IT policy which enables the company or its lawyers to demand the delivery of personal devices for imaging. In the lockdown, however, are employees using home PCs and other devices? Does the company’s IT policy entitle the company to demand access to these devices? What protections can be put in place to ensure that purely personal information – irrelevant to the company and the investigation – is either not collected or, at least, not reviewed.
6. The miscreant’s data – an opportunity? The continued lockdown may present an opportunity. Where the investigation relates to a fraud or other misconduct by an employee, it may be easier to copy the suspect’s data from PCs and other devices which remain in the office. There may be no need for a surreptitious early morning office visit by IT forensics given that so many offices still, despite the limited easing of lockdown measures, effectively remain shut.

With a little ingenuity and creative thinking, and a lot of patience and preparation, the pandemic's barriers to an effective document collection can be overcome.