Conducting Internal Investigations During the COVID-19 Pandemic

The usual methods for conducting a meaningful and thorough investigation need to change quickly. In-person document collection and review as well as face-to-face interviews are out, and questions and challenges have arisen for counsel. For example, without in-person witness interviews, how can defense counsel truly assess the merits of any whistleblower report or a witness's credibility? How can documents be shown to a witness sitting in a different country if borders are closed and flights are cancelled? Even if the law firm has a local office in the country in question, what if that country is in lockdown? How can documents be transmitted across international borders to U.S. counsel needing to defend the company before the DOJ or the SEC without violating local privacy laws? How can a company ensure enforcement of a document hold during an internal investigation and parallel government inquiry when its employees are all working from home? And with counsel accessing a company's data remotely and increases in Internet crimes, such as phishing, how can the security of that data be maximized?

Preservation of Documents and Legal Holds

COVID-19 and extended remote-work arrangements present new issues around implementing legal holds and preserving documents subject to government inquiries. More employees work from home, bring documents home, print documents at home, and electronically store documents at home or on non-business computers, devices or systems. Those home-based documents will be outside of any automatic document hold that can be applied by a company's IT department, and manual holds, especially of physical documents, require individual employees' cooperation. Accordingly, companies should:

1. Remind employees that company information created or stored off-premises belong to the company and remain subject to a legal hold if one is in place; copies of electronic documents should not be stored on employees' home/personal computers or in personal cloud storage accounts.
2. Consider extending time periods under existing document retention policies.
3. Remind employees that communications should be made using only company-approved channels and not through text messages, and that they should not delete voice messages on their personal phone on matters covered by a document hold or message retention policy.

Document Collection

Travel restrictions challenge the typical collection process. Sophisticated companies may be able to handle collecting electronic documents in-house with direct transmission to a vendor to process and load into a review platform. With technology personnel working from home, companies will need to consider the following:

1. For inaccessible physical documents and locally-stored electronic documents, are they critical to the investigation? Do electronic documents or records stored on centralized or cloud-based servers exist that can serve as useful proxies?
2. For electronic documents stored on centralized servers, if remote work restrictions prohibit technology personnel from forensically capturing metadata and file structures, do personnel exist who have access to most documents? They may be permitted to make them available to counsel for review using alternative means. Of course, that could increase a company's cybersecurity risk. These measures should not be undertaken without a thoughtful and informed balancing of the risk and criticality of each category of documents.

Issues Particular to Global Investigations

COVID-19 travel restrictions raise important considerations for counsel around digitizing physical documents, the wisdom and availability of cross-border document transfer, and the mechanism used for cross-border transfers — from both legal permissibility and cybersecurity risk perspectives.