Wrongdoing thrives in times of crisis. Some companies will be undone by the commercial effects of COVID-19. Others may survive only to be undone by groups or individuals acting without requisite integrity. There will be opportunists seeking to benefit from circumstance, but also employees under sustained pressure to meet unrealistic economic targets.
Present economic conditions have led businesses to reassess spending across all departments, with legal and compliance budgets being squeezed at a time when companies must remain more vigilant than ever. A blanket decision to pause investigations and compliance initiatives during this period – whether due to cost, technophobia, or a lack of agility to depart from traditional approaches – would be a dangerous and possibly catastrophic decision for companies. Yet continuity for investigations can absolutely be secured within restricted budgets and without sacrificing performance.
Lawyers and investigators – both in-house and external – who have engaged meaningfully with technology, have for some time recognised the potential to conduct effective remote investigations. Many others have long accepted this as the inevitable direction of travel. The COVID-19 pandemic, through necessity, has accelerated such thinking, removing the last remaining obstacle: mind-sets. Those tasked with planning and conducting investigations must adapt quickly.
Be warned, there is more to conducting a remote investigation than choosing the right video-conferencing service for interviews. The availability of ‘off-the-shelf’– and often free – technology can create a false sense of security and pose an increased risk to those conducting investigations, unless they have proper regard to the various pitfalls that exist.
Whilst the court systems in the UK have displayed a willingness to adapt and embrace technology, regulators have offered limited guidance as to what they expect as a matter of good practice. Investigators and lawyers will have to grapple with such issues themselves in order to avoid exposure to legal and ethical blind spots. Ethical duties, confidentiality, and the protection of legal professional privilege are non-negotiable but may come under threat in novel and unexpected ways.
Many of the existing core principles for investigations hold true but need to be considered carefully in their new context. A discrete internal investigation in a single location, concerned only with an employer’s internal disciplinary process, will of course involve different considerations to a serious, complex and wide-reaching investigation over multiple jurisdictions and with the potential for regulatory or criminal enforcement.
Investigations must continue, but they cannot bear fruit without access to the necessary evidence – and that means access to data. The ability to process, review, and interrogate data remotely – utilising artificial intelligence where appropriate – has been possible for some time. In a socially distanced but otherwise hyper-connected world, more is (and will increasingly be) said and done through electronic communication. Carefully selecting and deploying the available tools and technologies is today an essential part of any investigator’s skill set.
The initial collection of data is, however, more complicated. Electronic information has conventionally been stored in desktops, laptops, hard drives, file/email servers, document management systems and more recently, mobile phones. Traditionally, these are – as a matter of preference – collected onsite by digital forensic experts. Communication trends mean that information, particularly relating to illicit activity, is most likely to be found in cloud, chat, or mobile platforms. Advanced harvesting solutions enable forensic experts to securely collect all manners of data by using remote collection technology and without leaving their homes.
Once data is gathered, reviewed, and analysed, interviews will be necessary. When conducting interviews in person, investigators are able to control the interview environment. They can control who is in the room, study an interviewee’s body language, effectively gauge their understanding and assess their credibility without impediment. They can also put sensitive documents in hard-copy and ensure that bundles don’t leave the room.
The whole process becomes more complicated in a remote environment:
- Does an interviewee have grounds to object to a remote interview?
- Do company’s policies and procedures allow for it?
- How can effective rapport be developed and maintained?
- Can documents be shared securely without unauthorised copying and dissemination?
- Does screen-sharing hamper the ability to gauge credibility and conduct the interview effectively?
- Is a sophisticated file-sharing platform necessary to control and audit interaction with the documents (for example, to prevent downloads, secure the information or facilitate watermarking)?
- Should pre-interview warnings be delivered orally at the start of the interview or integrated through technology?
- Would recording the interview or utilising automatic transcription software have an impact on legal professional privilege?
In-person interviews will always have their place, but a ‘remote-first’ approach will undoubtedly become the new default. Whilst posing challenges and pitfalls, a technology-led position will bring both substantial costs savings and environmental benefits.
Proper assessment of risk and planning is more important than ever before. Companies must ensure that policies and procedures are suitably updated to accommodate modern developments. As a matter of good practice, investigators should record the rationale for their decision to use particular technological tools and the mitigation measures deployed to address identified risks. Checklists and written protocols should be produced addressing everything from what to do if technology fails, to advocacy techniques when interviewing remotely.
Organisations must not be paralysed by the limitations of traditional mind-sets and processes. Whilst companies consider embarking into a brave new world, they would do well to remember the old saying that “bad men need nothing more to compass their ends, than that good men should look on and do nothing”, but feel emboldened and empowered to protect their interests by leveraging the speed, efficiency, and effectiveness offered by remote investigations.
This article was co-authored by Fulcrum Chambers Ltd.