By Mike Hamilton, J.D.
As CNN reported earlier today, the FBI has announced an investigation into the nation’s largest bank, JPMorgan Chase, signaling that criminally activity may have occurred within the company. While the specific nature of the investigation remains unclear, the FBI and the Securities Exchange Commission (SEC) (under a prior ongoing investigation) are probing for information from JPMorgan. Along with these external pressures, JPMorgan is conducting its own internal investigation to examine their recent $2 billion dollar trading loss stemming from a string of trades on credit default swaps.
As JPMorgan treads its way through this tidal wave of regulatory pressure, its legal and compliance teams must remain acutely aware of the potential risk that is involved with properly conducting discovery in their own internal investigation as well as in the two other external investigations. Hopefully for JPMorgan’s sake they have taken advantage of technology and well-known best practices for maintaining defensibility throughout these proceedings.
Here are a few tips for corporations facing such investigations should consider for sustaining defensibility even through a tornado of e-discovery issues:
- Begin communications with the government agencies at the outset of the investigation to better understand the scope and requirements
- Develop a preservation and collection plan by: (A) Suspending their document retention policy; (B) Identifying who, what and where relevant ESI is located; (C) Outlining how to quickly and efficiently search and collect ESI while accounting for privacy, data in the wild (e.g. social media and mobile devices and cross-border concerns (e.g. data stored in the cloud)
- Issue a legal hold to all relevant employees with built-in compliance monitoring processes
- Document and track steps taken by the compliance and legal teams to ensure defensibility
- Based on early case assessment facts and findings, try to agree early with the external agencies on what actually needs to be preserved and produced
To learn more about juggling e-discovery concerns in the midst of investigations, register here for Exterro’s upcoming educational webcast, “Litigation, Regulations, and Investigations, Oh My!” The webcast airs live on June 7, 2012, at 1p.m. EST / 10a.m. PST.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.