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Tackling eDiscovery for FCPA investigations

Jeffrey Wolff
Jan 17, 2018 11:12:00 PM

Since 2007, the Foreign Corrupt Practices Act (FCPA) has brought about among the most dramatic international enforcement in the world. The number of FCPA enforcement actions has increased across industry types, and fines have been increasing ever since.


2016 marked a record year for corruption enforcement around the globe. With 29 corporate enforcements by the DOJ and 29 by the SEC, 2016 was one of the most significant years in the history of FCPA enforcement.

2017 seems to be on par with prior years: the DOJ resolved 28 corporate enforcements, and the SEC resolved 12, all of which resulted in almost $2.5 billion in fines and sanctions. During the third calendar quarter, Sweden's Telia reached a “blockbuster resolution” with the DOJ and the SEC, which ranked in the Top 10 of all time.


Complicating Factors

Whether unexpected or the result of a long internal investigation, FCPA investigations or regulatory requests are always unannounced and can be very disruptive to your daily business. Whenever corruption allegations arise, companies must act quickly to determine the scope of the claims and to strategize how best to respond.

Time is of the essence. Pro-activeness, self-reporting and cooperation with the authorities is strongly advised and will potentially reduce eventual penalties. However, in FCPA cases, which often involve both criminal and civil phases, the process of eDiscovery is complicated by several factors.

Most FCPA cases span multiple countries and involve different jurisdictions. A more detailed description of the unique challenges of cross-border litigation will be discussed in next week’s blog. In any case, you should be prepared to deal with non-US jurisdictions and languages other than English.


Act Quickly – Use Technology

All over the world, the vast amount of data involved in large-scale investigations presents the biggest challenge of all. Speed is of paramount importance, the sooner you know what really happened, the sooner you can plan your own strategy, start your own investigation with your own counsel and prepare for additional investigations.

Using the right tool to collect and preserve data will be instrumental in saving time and in preparing data for further assessment. Automation dramatically simplifies the process of mining the vast collection of data and helps you to find relevant information faster and with fewer resources.


Be aware of data privacy laws

In Europe, data privacy laws present a significant challenge. The new General Data Protection Act (GDPR) that will come into effect at the end of May explicitly restricts transfers of personal information. All organizations must have an enforceable plan to prevent the unauthorized transfer of data, particularly regarding transfers to locations outside of the EU.

Whether a data transfer is permissible under the rules of the GDPR requires answers to a series of queries about the content of the information. When PII or otherwise sensitive information exists in the data, additional restrictions may be applied, which may include revoking permission for the transfer of that information.

It may be improper to transfer an entire file under certain circumstances, thereby prohibiting persons outside of the EU to view such information. In other instances, a portion of the content of a file might block the permissible transfer. However, if actions are taken to redact the specific content in question, it may be permissible to transfer the remainder of the file.

ZyLAB’s eDiscovery technology combines advanced search, text-mining, auto-classification, natural language processing (NLP) and machine learning techniques from the field of Artificial Intelligence (AI) and is well suited to locate and filter your data about EU residents. After locating that data, our advanced tools for redaction and pseudonymization can then be applied to prevent unauthorized data transfers.

For more information on how ZyLAB ONE eDiscovery helps to limit the disruptive effect and cost of FCPA investigations, come find us at the 12th Houston Forum on the FCPA in Houston next week or read our solution data sheet.


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