Internal investigations and eDiscovery often start as fact-finding, but this can change quickly when legal or regulatory risks pop up. Discovery disputes can occur without early structure. Teams should design investigations with a clear legal direction in mind.
Internal investigations usually have one simple goal: figure out the problem and stop it from getting worse -- fast. People want answers, and rightfully so. Unfortunately, company internal investigation efforts sometimes turn into something bigger than originally anticipated.
Someone might threaten to sue, further complicating matters, or a regulator might get involved. Serious employment action becomes increasingly likely. Investigations change quickly and are no longer just about fact-finding.
Protect the work at all costs, including legal strategies, sensitive notes, and decision-making. Why? These items could lead to a lawsuit down the road.
Investigations don't pause just because a shift happens. Interviews happen, people send emails, and they continue to collect documents.
If the structure is too loose, problems are likely to occur later on. One misstep can cause discovery disputes that turn into delays and extra costs.
Structure keeps things flowing without causing more problems later on, especially once eDiscovery enters the picture.
The Moment the Risk Changes
Not all investigations become litigation. Some investigations are contained. Some might include:
- Coaching
- Policy changes
- Remediation
These are common types of internal investigations. However, it's important for teams to take note of warning signs so they can rethink the best way to handle an investigation.
For example, allegations involving regulatory or financial impact are a potential red flag. This is also true of complaints or inquiries from regulators.
If a team receives threatened claims, demand letters, or pre-suit notices, they should take this seriously. Senior leadership-related issues, or situations that might result in a person being disciplined or let go from their position, should also be flagged.
Teams tend to stay in early investigation mode even though the risk has changed. This can quickly escalate and cause trouble.
Notes might be in scattered places, or emails might be a little too casual. From there, later disputes may fester, especially during early case assessment.
Structuring the Investigation Without Slowing It Down
Speed and defensibility work well in tandem, which means teams don't have to choose one or the other.
A defensible investigation usually includes:
- Clear involvement of legal counsel
- A defined scope and purpose
- Controlled communication channels
- Documented decision-making
Nothing about this has to be complicated. It can be as simple as:
- Naming who is in charge
- Stating the purpose
- Limiting the location of the work product
When counsel directs the investigation, it's easier to argue that notes, strategies, and mental impressions are created because of legal risk. This is especially important later, when someone demands these materials through a discovery platform.
Separate Facts From Legal Analysis
One type of mistake is mixing facts and legal conclusions in the same document. Here are some examples of what these mistakes might look like on paper:
- Here is what we learned in interviews
- Here's what the documents show
- Here's what we think this means legally
- Here's what we think the risk is
The issue with these errors is that privilege has to fight harder. This gives courts and opposing parties leverage to claim that gathering "facts" was challenging for them during electronic data discovery.
The best thing teams can do is separate factual materials from legal analysis. This doesn't mean anybody is hiding facts. It just means everything is presented in a clean, concise way, which is easier to defend.
Interview Notes and Memos
Investigations hinge on interviews. They explain what people saw, did, and what they remember. This is why interviews have to be handled in a specific way.
Some ways to handle interviews include:
- Having counsel conduct or direct the interviews when possible
- Labeling interview notes clearly
- Avoiding verbatim "transcripts" unless required
- Capturing themes, impressions, and key points instead of long quotes
The most important goal is to document what matters instead of every single sentence spoken, particularly when interviews later feed into legal eDiscovery workflows.
Frequently Asked Questions
What Is the Definition of Work Product?
Work product typically refers to any materials created in anticipation of litigation. This might include legal strategy, lawyer impressions, and planning. The goal of work product is to protect sensitive thinking, with courts looking at the overall purpose and context, and not just labels.
Can Work Product Privilege Be Waived?
No. However, if communication tends to lean more toward business than toward the legal side of things, it can be harder to argue.
This is why counsel needs to define the scope at all times and manage channels. This is especially true for summaries, interview notes, and risk discussions managed within eDiscovery solutions.
What Should a Legal Hold Include Besides "Don't Delete"?
A strong hold should explain the issue. It should also mention the included sources, such as email, chat, drives, and phones.
Practical steps should be included, along with contact information for questions. Many teams rely on a legal hold platform to manage this process.
When Should You Bring in Outside Counsel?
Anytime leaders are involved, outside counsel can help. Outside counsel can also help when regulators are watching, cross-border data is in play, or serious employment actions are likely. Outside counsel becomes a necessity for later defensibility, especially when using eDiscovery as a service provider.
How Do You Reduce Accidental Waiver in Internal Emails?
Casual threads should never contain legal analysis. Additionally, always limit recipients and only use clean channels. Keep attorney comments out of wider business emails for later collection and review.
Design eDiscovery Investigations for the Outcome You Might Face
Investigations don't announce when they're turning into litigation. This is why building a structure with eDiscovery early on matters.
When teams plan in advance for legal protection, they can be more flexible. This lets them act quickly and protect themselves as they move into discovery, using modern eDiscovery solutions and legal eDiscovery tools.
Logikcull helps teams quickly gather data thanks to direct integrations and a drag-and-drop collection. Teams have greater control over quickly finding facts while restricting access to data, which is crucial during any litigation risk. Instead of worrying about third-party assistance, schedule a demo and handle more tasks in-house.
