With Remote the New Working Norm, What Does This Mean for the Litigation Cycle?
COVID-19 has changed the pattern of peoples’ lives worldwide, and it has faced the legal profession with its own unique set of challenges. Not only must the justice system pivot to remote working, but it must also deal with a backlog of pre-coronavirus cases – as well as addressing a surge of fraud investigations arising directly from the pandemic.
The stakes are high. Americans have lost an estimated $77 million to COVID-19 fraud, according to the Federal Trade Commission (FTC). Scammers across the globe have swooped like vultures onto this unprecedented opportunity to steal funds and data on a vast scale, targeting federal relief funds, stimulus checks and unemployment benefits. Phishing attempts include fake medical testing to steal data, and at the other end of the scale there is straightforward but outrageous price gouging on everything from consumer necessities to personal protection items. The FTC website highlights many other fraud types on its Scams pages.
The CARES Act – and other legislation providing trillions of dollars in emergency loans and spending to combat the economic impact of COVID-19 — has laid the groundwork for increased fraud investigations and enforcement actions related to COVID-19 stimulus. The U.S. Department of Justice (DOJ), Civil Division has recently announced plans to use the False Claims Act to address fraudulent or false claims associated with COVID-19 relief spending, including Paycheck Protection Program (PPP) loans. Inevitably, this points towards an increase in investigations, and also towards a more technology-driven approach to managing investigations.
Remote investigations require some major adjustments to process, which has driven some rapid innovation in how we deliver the FRONTEO solutions. We see, for example, that legal teams must account for the many different data sources that companies and their employees are using to facilitate remote working. And then there are challenges for data preservation, particularly with devices, media and documents held in different locations. Security is a significant issue. Employment law and data privacy risks must also be managed. With network data, where external data collectors cannot travel to site, data must either be collected by granting external providers access to systems or by remote supervision. Plus, attorneys must bear in mind, as they remotely review emails and other personal data that is stored in another jurisdiction, that this could trigger data privacy issues because it could technically be considered to be a data export.
Legal teams must do all in their power to ensure they can preserve and collect data remotely. The DOJ requires companies to ensure that communications sent over instant messaging applications are retained and retrievable in the event of an investigation. Legal teams that fail to do so could be prohibited from receiving full credit for timely and appropriate remediation in a DOJ investigation.
Significant challenges, yes – but not insurmountable. At FRONTEO we’re helping to address these problems in various ways. We have the ability to “collect” smartphone data via the custodian’s cloud backup, delivering a remote solution to cell phone collections – long a hurdle in our industry. Our Self Collection Kits, pre-formatted hard drives which come with a small executable, allow the custodian to perform a forensically sound forensic collection of their hard drives which is then returned to us or analysis.
Choosing the correct tools has an even more critical impact on investigations when the review teams are not in the same physical location. Analytics and AI-powered search engines such as Fronteo’s KIBIT are today among the most strategic and effective tools for attorneys conducting investigations remotely. They enable litigators to sort through thousands of pages of discovery documents in a fraction of the time required for traditional database search, gain strategic insights into their cases, and answer questions with speed, accuracy and confidence.
To enable document review on critical litigations to continue, at the onset of the coronavirus crisis we migrated our Fronteo Managed Review Service operations in the United States to a work-from-home solution. Based on Google Cloud, the world’s largest, most reliable and secure cloud network, it allows our attorneys to work virtually and includes deeper security measures such as IP tracking, activity monitoring and a locked-down system that prevents the saving or printing of data. Additionally, we have staff dedicated to monitoring remote review attorney activities so that we can ensure ongoing support for clients and their projects.
With remote working likely to remain the norm for the foreseeable future, attorneys have to find ways to continue to operate securely and efficiently while doing the best they can to protect public health and safety. Across the nation, it is becoming evident that legal teams who have embraced these new technologies are able to move at unprecedented speeds and efficiencies to bring COVID-19 fraudsters to justice and continue with other critical litigation investigations. AI-driven managed review is just one such way in which the ‘remote’ future of litigation is becoming today’s reality.