The client often becomes aware of a competition enquiry with a “dawn raid” on the client’s premises or a Request for information. Thereafter, the manner in which the client deals with the Commission and, in particular, responds to their usually stringent and demanding deadlines, goes a long way towards the most successful outcome for the client.
During these raids – data, included on computers, servers and other devices are seized or with a request for information, large data systems needs to be analysed to accurately identify and collect relevant data. There is huge pressure, to search and locate relevant data, which may include legally privileged and confidential documents because of the timelines involved. The advantages to effectively adopt and follow internationally accepted e-discovery processes is the most pro-active and sensible way forward to achieve this within the time- constraints.
Using the best of what technology has to offer will always provide the most satisfactory results. In the eDiscovery domain, “Early Case Assessment (ECA)” is the trending technology, which is used for quick analysis of the data collected from desktops, laptops, servers or from the cloud environment, to develop an initial case strategy. Finding out how much data you have, and appropriate date ranges, a quick assessment of domains, and whether any documents exist in foreign languages, or private and personal information, are just some examples of what we can learn from ECA.
Using technology solutions with ECA capabilities, LexTrado EDS uses experienced and practical methodologies, which help you to understand your case as early as possible.
A simple summary to emphasise this, is:-
- Know your data and it’s location, access and security
- Understand who your custodian (key players) are
- Answer the Who knew, What, and When
- Reduce time and cost spending on non-relevant data
Clients may however, have received wind of the possibility of an investigation well in advance through media briefings or known complaints regarding the particular industry. An effective early case assessment using eDiscovery processes, allows you to efficiently gather the required information, cut down and review Electronically Stored Information “ESI”, to ensure you can make the best-informed decisions pertaining to the case. ECA strategy can be deployed quickly and provides real value for time and money.
Following a structured and targeted discovery strategy during, what is often known as the “race for leniency”, whereby the aim is to impress the Commission with the diligence of the internal investigation to the point that sanctions are mitigated, is highly advisable.
It is also worth noting that corporations may be aware of a possible investigation and action can be taken prior to a “dawn raid”. This is referred to as “litigation readiness” and involves using many of the above specified techniques to prepare for what may be to come.
It is incontrovertible, therefore, that the use of eDiscovery technology is invaluable in Competition matters and is widely used across the world. The question remains in SA: are either or both sides harnessing this technology for maximum advantage? Here at LexTrado we believe that we have all the required experience and skills in place, which will aid all parties in a paradigm shift as to how Competition cases should be run. The benefits ensure that deadlines are adhered to and the margin for error eliminated.