Insights From The Inevitable: Using Technology to Respond to Government Investigations

Insights From The Inevitable: Using Technology to Respond to Government Investigations

On January 14, attorneys from three storied organizations, came together for the first of 2021’s The Inevitable Series to discuss Using Technology to Respond to Government Investigations.”

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The Panelists include:

  • Dmitry Lukovsky is Senior Director & Assistant General Counsel, Western Digital. Mr. Lukovsky started his legal career as defense counsel at a large law firm and then spent 11 years with SEC’s enforcement division He also spent some time as a Special Assistant U.S. Attorney in the Southern district, working on insider trading matters.
  • Co-Head of Americas Litigation, Goldman Sachs, David D. Markowitz was also with the SEC where he was in the New York office prior to joining Goldman. He held several positions including Assistant Regional Director. He then ran the Investor Protection Bureau for then Attorney General Andrew Cuomo. And,
  • Barrett Atwood, Director, Litigation at Lyft was with the SEC’s enforcement division where he was a trial attorney and also supervised investigations prior to joining Lyft, Inc. two years ago. His tenure in government also included time with the Department of Justice and Environment and Natural Resources Division. Prior to this Barrett was at Baker Botts in D.C.

“First of all, you are presumably already at a disadvantage. You don't know the issue...You want to figure out what the issue is and remediate as fast as possible. But you also want to make sure you comply with all the legal requirements and you want to lock down all the relevant data ― identify where the data is. And often times this is more challenging than people think.”

―Dmitry Lukovsky, Senior Director & Assistant General Counsel, Western Digital

Picking up on Dmitry’s point, Goldman’s Markowitz notes that, “There are a lot of issues to consider. And so there's immense pressure to figure out what's going on and lock down all the data. Review all the relevant data.” He further adds that, “the sender of the subpoena has a good idea of matters about and what they're looking for, but they don't know exactly how to get it.” He also notes that discovering and securing information that “might not have been top of mind when you first looked at it” is critical.

Technology, Time Travel, and Trust

As David notes, “most investigators are going to want information in a usable way, in a way that provides the relevant information as quick as possible and information that they could use in a court of law...So from that perspective, if technology could help them get that information in a quicker, more efficient way, they're generally on board.”

Barrett is reminded of the early days of e-discovery technology where convincing opposing counsel – never mind a government litigant or investigator – that you wanted to you wanted to find relevant documents by using this newfangled email search, where you'd have to pick certain custodians” using search terms constructed with Boolean logic.

“Where I think there's room for current use of advanced technologies [like AI] is perhaps doing privilege review or, at least on your side...doing your first level of review with such technology because that can be something that accelerates both your response time and your confidence and not producing privileged data.”

―Barrett Atwood, Director, Litigation, Lyft

Dmitry agrees but notes that generally there is, “alignment of interest here between the government and the company in that both parties want to resolve the issue quickly and get the most responsive documents and largely only the responsive documents.” He opines that government litigators are receptive to newer technologies including artificial intelligence:

“Government by this point is pretty comfortable with technology assisted reviews [TAR] and use of predictive coding. It's been used and approved by the courts...for about eight, nine years now.

So you're going to have a receptive audience.”

―Dmitry Lukovsky, Senior Director & Assistant General Counsel, Western Digital

David emphasizes the criticality of communication to gaining and retaining trust. And “doing whatever it takes to try to make sure everyone understands what is being proposed, and not being proposed, is really important...the last thing you want is in the early stage of a matter to have any kind of miscommunication that could get things cross wired."

Too Much Data. Too Little Time.

“...a subpoena comes in asking for communications from one person, who's happens to sit on a sales and training desk. That person very likely could be involved in Bloomberg chats, where the data [volume] is exorbitant.

―David D. Markowitz, Co-Head of Americas Litigation, Goldman Sachs

“You know, I'm sometimes surprised to this day,” says Dmitry, when making an internal request for data and it appears to be taking too long, and then I “start interfacing with someone, realize the level of complexity; the sheer volume of data; how many legacy systems and how many different integration issues might be involved.”

"It's always amazing what kind of deadlines you're expected to comply with,” offers Atwood. “And how much work it is.”

“And because that's ultimately going to lead to difficulties in how responsive and how quickly you could be, right?” says David. And importantly, “you can only review documents for quickly” Simply put, while benefiting greatly from technology in terms of speed, cost, and accuracy, most counsel still prefer eyes on paper as part of a quality control regimen for privilege and sensitive data review.

Technology has played a leading role in managing volume and complexity since the days of redwells, actual bates stamps, highlighters, and sticky notes became obsolete.

Twenty years ago it was scanning documents going page-by-page reading PDFs. This gave way to “newfangled email searches” and Boolean search syntax. This evolved through TAR and increasingly sophisticated data analytic capabilities including predictive coding, to the now state-of-the-art AI deploying ever-evolving machine learning techniques.

All to tame the virtual mountains of structured and unstructured data that form the corpora of regulatory response reviews and productions.

New technology to manage an old problem.

Too much data, too little time.

You will find the full presentation here and The Inevitable 2020 Series lineup here.