Patrick Kellermann from LeClairRyan, an expert in e-discovery and data compliance issues, joins us again as a contributor.  His profile can be viewed here. 

In all honesty, document collection and review during an internal investigation is not a very sexy issue.  It is not like interviewing techniques, strategy calls on how to conduct the investigation, or even like reporting to the Board on an investigation.

Like all other issues in an internal investigation, document collection and review has to be done carefully.  If the collection or review is mishandled, the overall integrity of the internal investigation can be called into question and may even raise criminal obstruction of justice issues.  It is another way in which an internal investigation can become a nightmare.

In the ideal world, you should review relevant documents before conducting any interviews.  That is an ideal which is rarely met – in most cases, it is important to interview immediately the key witnesses in a crisis situation.  It really depends on the nature of the issue which is being investigated.

We cannot emphasize this enough: to reduce costs, avoid the accumulation of unnecessary records, and to facilitate the actual record collection, it is absolutely critical to have a document retention policy in place before an investigation begins.  A document retention program must address the following topics: the legal framework; the scope of the records covered by the policy (electronic, emails, hard copies and other types of records); records retention periods that vary by record type and quality; a designated employee or office responsible for compliance; review of practices to ensure compliance with Policy terms; procedure for destruction; employee training; oversight mechanisms; and policies to be applied in the event that litigation or investigation becomes reasonably anticipated.

It is important to involve in-house personnel familiar with the company’s record management and storage systems from the outset.  The key focus in these meetings is to learn where all potential hard-copy and electronic documents may be located and how they can be retrieved.  As part of this inquiry, the company needs to consider what documents, if any, are in the possession of third parties – lawyers, accountants, consultants. 

A first task when an investigation becomes reasonably anticipated is to issue a document preservation letter which hopefully is accomplished pursuant to the company’s document retention policy.  The document hold letter must be issued to all potential custodians of documents which may be relevant to the matter under investigation. The failure to issue a document hold can subject the company to potential obstruction or spoliation charges down the road.

Some say collection of records should follow the lead of the document hold notice and reach as far as possible.  This is unwise in some situations.  In adverse litigation, for example, meeting and agreeing with opposing counsel on the systems, custodians, and record-types that will (and will not) be collected is an invaluable opportunity to narrow the scope of costly discovery.

The legal and compliance staff should play an active role in the entire process, which includes, drafting the Record Retention Policies and Procedures, initial meetings, identification or custodians and materials, issuing a hold notice, and should be consulted whenever any question arises regarding the investigation.