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1、WHITE PAPERDecember 2022Corporate Internal Investigations:Keys to an Effective Work Plan,Data and Document Management,and BudgetAs described in the first White Paper in this series on internal investigations,“Conducting an Effective Internal InvestigationAn Overview,”corporations are under increased
2、 scrutiny by regulators across the globe,and as a result,it is more important than ever for companies to conduct an effective,defensible inter-nal investigation when allegations of misconduct arise.An effective internal investigation allows companies to proactively examine the facts and assess any a
3、ssociated legal,financial,and reputational risks,whether or not a related government investigation or civil litigation is underway or anticipated.But investigation costs can escalate quickly,especially with investigations that cover a significant period of time and/or territory,or that involve condu
4、ct that may potentially expose the entity or individuals to criminal penalties or significant civil liability.A work plan and budget are key to both ensuring a thorough investiga-tion and managing investigation costs.This White Paper summarizes considerations for creating an effective work plan for
5、an internal investigation,successfully managing the collection and production of data and documents,and planning for the catego-ries of expenses that typically arise in an internal investigation.We also offer guidance on how to budget for each line-item.Although each work plan and budget will necess
6、arily vary in its components and costs,the categories described below should be considered when setting the work plan and budget in virtually every corporate internal investigation.1 We conclude by offering a“checklist”of issues and tasks to consider in preparing an effective work plan,managing data
7、 and documents,and formulating an investigation budget.2Jones Day White PaperTABLE OF CONTENTSINVESTIGATION WORK PLANS 3DATA AND DOCUMENT MANAGEMENT 3Document Preservation 3Document Collection and Custodian Interviews 4Tools for Efficient Document Review 5Document Review Procedures 5CONSIDERATIONS F
8、OR MOBILE DATA AND INSTANT MESSAGES 6Mobile Data 6Instant Messages 7INVESTIGATION BUDGETS 7Witness Interviews 8Forensic Accounting Support and Subject-Matter Experts 8Reports and Recommendations 8Remediation and Personnel Matters 8TIPS FOR CONTAINING COSTS 9CONCLUSION 9CHECKLISTS 10Items to Include
9、in a Work Plan 10Data and Document Management Checklist 10Budget Checklist 11ENDNOTES 12LAWYER CONTACTS 12ADDITIONAL CONTACTS 133Jones Day White PaperINVESTIGATION WORK PLANSA detailed investigation work plan is a key initial step for conducting a thorough and efficient internal investigation.At inc
10、eption,an investigation work plan should cast a sufficiently wide net,identifying all known avenues for fact development.The work plan should identify the scope and objectives of the investigation,including the issues and types of conduct to be investigated and the persons understood to be involved
11、in the conduct.The principal components of a comprehensive work plan include:(i)objectives of the investigation;(ii)antici-pated scope(i.e.,allegations and issues to be investigated);(iii)identification of team members;(iv)tasks to be completed,including the data and documents to be reviewed,witness
12、es to be interviewed,any financial analysis to be conducted,and any required legal research;and(v)responsibility among team members for such tasks.The work plan should include whether the investigation will be structured to be protected by attorney-client privilege or work product protections.It sho
13、uld address any interim or final reporting that is expected,even if the form of any final report is not certain.Additionally,the work plan should identify any required engagement with third parties,such as company auditors,the board of directors or the audit committee,gov-ernment regulators,employee
14、s counsel or representatives,contractors or vendors,and the companys insurance carri-ers(to the extent that any portion of the investigation,or any loss resulting from the conduct being investigated,may be covered by the companys insurance policies).A checklist of suggested items to include in a wor
15、k plan can be found at the end of this section.After a work plan is developed,it should be reevaluated on a regular basis and modified as appropriate while the investiga-tion progresses to incorporate new information and develop-ments in the investigation strategy.Periodic communication about the wo
16、rk plan is vital since the urgency of an investiga-tion often means the various components of the work plan occur simultaneously,and adjustments to one component may require corresponding adjustments to other areas of the work plan(e.g.,the addition of a witness to the interview list may require cha
17、nges to the document collection and review por-tion of the work plan).The work plan should track the budget.DATA AND DOCUMENT MANAGEMENTDocument preservation,collection,review,and management are key components of conducting an internal investigation.Even if a government regulator or plaintiffs couns
18、el has not sought documents by subpoena or via document requests,reviewing documentary evidence related to the alleged con-duct is crucial to gathering relevant facts and analyzing poten-tial outcomes.Managing data and documents as part of an investigation may involve a large number of tasks,includi
19、ng identifying custodians and other potential sources of material(e.g.,company servers,shared drives,documents stored in the cloud);conducting custodial interviews;coordinating with in-house IT teams to collect documents;arranging for document preservation;determining a method to store,host,and revi
20、ew data;processing data and running search terms;reviewing the documents themselves;and identifying key documents related to the conduct at issue.In addition,documents may need to be produced to regulators or summarized for inter-nal client stakeholders.A checklist of items to keep in mind related t
21、o data and document management can be found at the end of this White Paper.Document PreservationThe first step in managing documents in an investigation is identifying where relevant documents are located and pre-serving those documents.Particularly at the outset of an inves-tigation,it is important
22、 to consider the confidentiality of the investigation.The investigation team should work with corpo-rate IT to identify back-end mechanisms for preserving and collecting electronically stored information(“ESI”),including disabling automatic deletions and preserving all relevant infor-mation that can
23、 be accessed by IT personnel remotely(e.g.,emails or other documents stored in the cloud).The investi-gation team might also review organizational charts for the time period at issue,corporate document storage and reten-tion policies,and other corporate records,such as personnel files,in order to id
24、entify relevant custodians and categories of information.Corporate employees with potentially relevant docu-ments should receive a litigation hold notice as early in the 4Jones Day White Paperinvestigation as advisable,typically in conjunction with,or soon after,back-end mechanisms for ESI preservat
25、ion have been deployed.An effective litigation hold should be com-prehensive and easily understood by employees and should instruct recipients not to delete any documents relevant to the investigation.A litigation hold notice should provide gen-eral background on the reason for document preservation
26、 and give broad,but clearly defined,categories of information to be preserved.If a subpoena,government request,or discovery request is involved,the hold notice should ensure that all cat-egories of the subpoena or requests are fully covered by the hold notice.Companies should be mindful that issuing
27、 a hold notice may trigger insurance coverage notification obligations.Before collecting documents,the attorneys leading the inves-tigation should consider whether an external discovery vendor is needed to capture,host,and,if necessary,produce the col-lected data and documents.In deciding whether to
28、 engage an external vendor,in addition to the costs of the vendor,compa-nies should consider in-house capacity for document hosting,review,and processing;whether vendors have the necessary expertise to handle all necessary tasks;the complexity of the investigation and the underlying collection;and w
29、hether pro-duction of documents to third parties is anticipated.In cir-cumstances where the volume of documents is substantial,there are particular technology issues or needs,or the col-lection is especially complex,an external vendor can often streamline the collection,review,and production process
30、 and allow for scoping changes,if necessary,as the investigation develops.The vendor should work at the direction of out-side counsel to preserve attorney-client privilege and work-product protections.Document Collection and Custodian InterviewsOnce data on company systems has been preserved,the nex
31、t step is usually to preserve and collect devices and documents that cannot be collected remotely.Such collection should be done as early in the investigation as practicable but may not be executed until:(i)any related requirements under applica-ble labor and/or data privacy laws have been met;and(i
32、i)the company is ready to disclose to witnesses that an investiga-tion is ongoing.Depending on the nature and complexity of the misconduct alleged,custodian interviews with individuals identified as potentially having relevant documents may be an important step in document collection.Many companies
33、have a form used for custodian interviews,but it should be reviewed prior to use in particular instances to ensure it is tailored to the needs and objectives of the investigation.During the interview,custodians should be asked about their document and record-keeping practices,the types and locations
34、 of devices utilized,and where relevant data and documents are located.Consider asking the custodian about the following topics:Use of work or personal computers or other devices(mobile phone,tablet,etc.);Foldering,archiving,and deletion practices;Location of relevant documents used or created by th
35、e custodian(My Documents,shared drive,cloud storage,hard copy);Use of work or personal email addresses;Use of work or personal calendars;and Use of text messages,chats,or other instant messag-ing programs.5Jones Day White PaperFor investigations where mobile data may be relevant,it is particularly i
36、mportant to understand whether the custodian uses a personal mobile device or a company-owned mobile device for work purposes.Investigators should consider cor-porate policies concerning mobile devices(e.g.,Bring Your Own Device(“BYOD”)policies),as well as any data privacy laws in the relevant juris
37、dictions,to determine whether there are prohibitions or limitations on the collection of personal mobile data.Another White Paper in this series will address the com-plex issue of data privacy and cross-border transfers of data in the context of investigations.As the investigation continues and addi
38、tional information is learned,investigators should consider whether to add addi-tional custodians or other sources of documents.Testing search terms or collecting a sample of a custodians files can help determine the cost-effectiveness and substantive value of adding the individual as a custodian be
39、fore doing so.After relevant documents and data are collected,they will need to be processed and loaded to the agreed-upon data-base or review platform.Tools for Efficient Document ReviewOnce data is collected,the process of narrowing the universe of documents for review can begin.An important consi
40、der-ation in determining the scope of the document review uni-verse is the purpose of the review(e.g.,whether the review is being conducted in response to a government subpoena or a document request or as a fact-finding exercise in an internal investigation).If documents are being reviewed in respon
41、se to a government subpoena,for example,investigators will gen-erally have less discretion in determining the scope of the review.In internal investigations,outside counsel should work with company contacts to determine the most cost-efficient means of obtaining the salient facts through document re
42、view.Some of the methods used to make a document review more efficient include use of search terms and/or date ranges,de-duplication,and use of technology-assisted review(“TAR”).Search terms and date-range limitations are the most common methods for culling data before review.Both can be critical fo
43、r narrowing the scope of a document review and should be developed with input from the company,including in-house counsel and,where appropriate,key employees.If government regulators are involved in the investigation,consider discuss-ing and negotiating search terms and date ranges to be used with g
44、overnment attorneys.Doing so can be useful to obtain-ing cooperation credit and ensures that the government and company are aligned with respect to the scope of document collection and review.In some instances,the government will also ask to review the hit report to understand which terms were most
45、productive in yielding documents.Developing and running search terms can often be an iterative process,as terms that yield a large number of irrelevant documents,or“false hits,”may be removed or fine-tuned.Another method to decrease the volume for review is de-duplication,which involves cross-refere
46、ncing documents that appear in multiple custodians data sets and removing those documents that appear more than once.This process can significantly reduce the number of documents that must be reviewed and produced.Finally,in some investigations,TAR may allow the investiga-tion team to find and revie
47、w the most significant documents early in the investigation,without conducting a front-to-back review.TAR technology uses machine-based processes and algorithms to identify potentially relevant documents.TAR is most effective in investigations involving a core set of highly relevant documents,which
48、can then be used to“teach”the technology what to look for in potentially relevant documents.Document Review ProceduresPrior to beginning document review,it is important to deter-mine:(i)the protocol for reviewing the documents;(ii)who will review the documents;and(iii)the goal of the review,whether
49、it is investigative fact-finding,preparation for witness inter-views,or production to regulators.A review protocol is a written set of procedures to provide an overview of the subject matter and clear,detailed instructions 6Jones Day White Paperfor how to review and code documents based on their rel
50、-evance,significance,and any other necessary categories.Investigators should consider adding issue tags or codes that track with themes of the investigation in order to keep documents organized and to help prepare for witness inter-views,government presentations,or responding to production requests.
51、If production to third parties is anticipated,privilege and work product tags should be utilized in order to ensure privileged material is identified and protected.Investigators should obtain a list of in-house and external counsel,as well as other company-specific privilege terms,to assist in con-d
52、ucting any required privilege review.Confidentiality tags may be useful for certain documents,such as sensitive financial records.A“significant”or“key”tag will also be helpful for iden-tifying the most important documents.Any attorneys that are participating in the review should be trained in order
53、to ensure they have sufficient background on the investigation and can spot relevant and significant doc-uments.The investigation team should ensure that there is a clear process for escalating questions and ensuring con-sistency among reviewers.Outside counsel should provide training consistent wit
54、h the review protocol and to maintain privilege,and outside counsel should also lead quality control.Many investigations call for consideration of whether to utilize contract attorneys or outside counsel associates to review the documents.Contract attorneys are generally less expensive than outside
55、counsel,may possess foreign language capabili-ties that go beyond those of outside counsel associates,and are often available to mobilize quickly on a large scale,allow-ing for the review to proceed quickly and efficiently.Contract attorneys frequently conduct a first-level review,with outside couns
56、el performing a second-level review of relevant and sig-nificant documents and quality-control checks.This ensures that the lowest billing rates are assigned the higher volume of document review work,increasing cost efficiencies.It also ensures that outside counsel,who will be most familiar with the
57、 underlying facts and issues,have substantial oversight.Reviewers should be monitored on a regular basis to ensure that the review is proceeding on pace and that questions are addressed promptly.CONSIDERATIONS FOR MOBILE DATA AND INSTANT MESSAGESData contained on mobile devices or in temporary mediu
58、ms,such as instant messages,present unique challenges to the investigative process.However,it is increasingly common for government regulators and plaintiffs counsel to include mobile data and instant messages in subpoenas and docu-ment requests.Further,recent DOJ guidance suggests that collection a
59、nd production of all relevant,nonprivileged docu-ments,including text messages and instant messages,will be a factor in assessing a companys cooperation.2 Additionally,such data may be key to developing the facts in an internal investigation.Mobile DataA companys corporate use or BYOD policies can i
60、mpact whether mobile data may be relevant or accessible in an inter-nal investigation,as does local law.As noted above,potential document custodians should be asked about whether they use a mobile device for work purposes and,if so,whether the device is personally owned or employer-provided.Investig
61、ators should review the companys corporate use policies and local data privacy law to determine whether there are any limitations on the collection and review of mobile device data.7Jones Day White PaperAdditional factors to consider in determining whether to col-lect a particular custodians mobile
62、data include the cus-todians role in the investigation;the custodians use of the mobile device for work purposes,particularly with respect to text messages or messaging apps;and whether the mobile device syncs with the custodians work email or computer,which may impact the availability of data.Inves
63、tigators should balance these considerations in determining whether to col-lect mobile data.If a custodian utilizes text messages for work-related purposes,it may be appropriate to collect and review those.However,where a custodian utilizes a mobile device in a limited capacity,it may not be cost-ef
64、fective to collect and review the data.Management or employees implicated in the allegations being investigated may be good candidates for mobile data collection.Instant MessagesFor instant messages or chats,attorneys should work with in-house IT to determine the applicable retention process and pol
65、icies.If instant messages are regularly retained by the com-pany,potentially relevant messages should be preserved,as they are frequently included in subpoenas issued by regula-tors.In determining whether to collect and review instant mes-sages,consider what type of content is available in instant m
66、essages and whether that content is likely relevant to the investigation.Employees may speak more informally in instant messages than in email,and therefore instant messages may be an important source of relevant information,depending on the subject of the investigation.INVESTIGATION BUDGETSTo contr
67、ol costs without compromising the fundamental objec-tives of the investigation,it is frequently beneficial to develop a budget at the outset of the investigation.Based on the best available information at the time,the initial budget should make appropriate assumptions about factors that will influ-e
68、nce costs and assign reasonable and realistic cost projec-tions to the tasks that are expected to comprise the overall work plan.As such,counsel should consider a number of issues when preparing the budget,including:The scope and objectives of the investigation,as outlined in the work plan;The compl
69、exity of the investigation,including whether there is an international component;whether government regula-tors are involved;whether third-parties,such as vendors,are implicated;and any novel legal issues presented;The number of document custodians and witness inter-views(both of which may expand du
70、ring the course of the investigation);The magnitude of the data preservation and collection effort and associated storage costs,including costs for an e-dis-covery vendor,if applicable;Document review costs,including for the document review platform,the potential use of TAR or contract reviewers,and
71、 whether foreign language reviewers or translations will be required;Witness interview preparation and execution costs,including whether interviews will be conducted in person or remotely and whether foreign language translators will be required;The time associated with preparing investigative mater
72、ials and coordination among investigation team members and with the client;Any need for subject-matter experts(e.g.,forensic accoun-tants,computer forensic experts,local counsel,etc.);Any anticipated reporting obligations to the board of direc-tors,regulators,external auditors,or other stakeholders;
73、and The costs of identifying and implementing any remedial measures or resolving personnel issues.While developing a budget necessarily involves at least some measure of estimation,and may not be appropriate for every situation,investigators and clients frequently find budgeting helpful for understa
74、nding how certain variables inherent in the investigative process,such as scope,timing,and resources,might influence the overall cost of the investigation.Budgeting also facilitates communication between counsel and client about the clients specific objectives.A checklist of proposed budget items,as
75、 well as tips for containing costs,are con-tained at the end of this White Paper.Once developed,the budget should be reviewed and updated regularly throughout the investigation.As the investigation pro-ceeds,the initial assumptions and corresponding budgeted 8Jones Day White Paperamounts for each ta
76、sk can be re-evaluated and modified as appropriate based on any changes to the work plan or any unforeseen developments.3 Witness InterviewsWitness interviews are critical to fact-finding in almost all inter-nal investigations,and an effective budget accounts for the costs of preparing for,attending
77、,and memorializing the inter-views.Scoping interviews typically occur early and are primar-ily intended to discover basic facts,other sources of relevant information,and the nature and extent of the witnesss own knowledge.These interviews typically require less prepara-tion than substantive intervie
78、ws,which are often completed after document review and may involve asking the witnesses about particular documents.Intensive preparation is typically required for key substantive interviews because such inter-views are critical to developing a comprehensive understand-ing of the conduct under invest
79、igation.The budget should reflect:(i)the anticipated number of scop-ing and substantive interviews;(ii)the total time expected to be devoted to preparation for,participation in,and memori-alization of the interviews;and(iii)whether the interviews will take place via a web-conference platform or in-p
80、erson.The use of web-conference platforms for witness interviewswhich has increased substantially in the wake of COVID-19 and the corresponding increase in remote workhas the potential to save clients thousands of dollars and a significant amount of time.Nevertheless,it may be more effective to inte
81、rview some witnessesincluding subjects of the investigation or witnesses requiring the use of a translatorin person.Forensic Accounting Support and Subject-Matter ExpertsThe budget should account for potential costs of involving other professionals and subject-matter experts in the inves-tigation,su
82、ch as forensic accountants and computer forensic experts.Forensic accountants assist in reviewing accounting or financial information,identifying potentially problematic transactions,analyzing the accounting treatment accorded thereto,and in reviewing internal controls.Forensic accoun-tants may also
83、 assist with witness interviews,particularly where the witness is an accountant or the interview involves technical accounting issues.Forensic accountants and subject-matter experts should be asked to prepare their own budgets in con-sultation with other members of the investigative team,consis-tent
84、 with the same principles and approach used in setting the overall investigation budget.4 Reports and RecommendationsPreparing reports and recommendations and meeting with key stakeholders,including regulators,the board of directors,outside auditors,or other outside counsel(e.g.,the compa-nys securi
85、ties disclosure counsel and counsel for individual employees),are often key elements to conducting and con-cluding an internal investigation.An effective budget should account for costs associated with these activities.Key bud-geting considerations include:(i)the frequency and nature of the reportin
86、g;(ii)the time and resources required to prepare expected work product;and(iii)any potential follow-up items,including considerations related to self-reporting to regulatory authorities,if applicable.Remediation and Personnel MattersTo the extent the investigative team is expected to be involved,the
87、 budget should also account for the costs of identifying,analyzing,and implementing remediation measures related to 9Jones Day White Paperany wrongdoing uncovered,including enhancements to the corporate ethics and compliance program,if applicable.In addition,personnel-related costs should also be in
88、cluded in the budget.These may consist of,for instance,time devoted by the investigative team:(i)in connection with the discipline,coaching,or retraining of employees;and(ii)to work with any counsel for or representatives of individual directors,officers,or employees.TIPS FOR CONTAINING COSTSThrough
89、 some basic steps,those managing internal investiga-tions can instill appropriate discipline on the investigative pro-cess,and the organization as a whole can expect reasonable certainty as to budget projections.Below are suggested tips to consider for containing investigative costs.Consider the pot
90、ential advantages and disadvantages of engaging outside resources such as outside counsel,foren-sic accountants,and computer forensic experts.Depending on the circumstances,and assuming the availability of sufficiently capable internal resources,cost-savings may be achieved by foregoing some or all
91、outside resources.However,cost-savings should not be dispositive in pre-paring a budget for an internal investigation.The analysis should also involve a careful assessment of the nature and scope of the issues under investigation,the benefits of independent work product from outside resources,and pr
92、ivilege issues.Have in place,and enforce,clear billing guidelines that cover,among other things,the manner in which outside pro-fessionals are to record time and expenses and the items for which billing is(and is not)permitted.Investigate in phasesidentify priorities and key tasks at the outset of e
93、ach phase,and ensure that the learning from one phase is considered when planning and budgeting for successive phases.Conduct scoping interviews early to understand the location of potentially relevant documents,data,and witnesses,and to protect against chasing what could be readily identified as fa
94、lse leads.Set priorities for ESI collection and review,and,if possible,stagger the review such that decisions about whether to collect and review additional ESI can be made on a rolling basis and unnecessary ESI work can be avoided.Similarly,leverage scoping interviews and information learned from E
95、SI review to prioritize and carefully sequence witness interviews to avoid unnecessary or duplicative interviews.Use targeted search terms for ESI review and consider a database vendor that offers“predictive coding.”Consider using contract attorneyswith appropriate train-ing and supervisionfor first
96、-level ESI review.Obtain periodic budget reports(e.g.,time incurred ver-sus budget).Frequently(re)evaluate the scope and breadth of the inves-tigation(e.g.,performing a“sampling”approach,instead of reviewing all potentially relevant events or transactions,is often sufficient,as not all allegations o
97、f a possible violation of law or company policy necessarily merit the devotion of significant investigative time and effort).Consider the nature and extent of periodic substantive reporting on interviews and investigative findings or obser-vations,balancing the need for information flow with the cos
98、ts involved.Consider options on final substantive reporting from a cost perspective5(e.g.,a narrative summary or slide deck,in lieu of the typically more expensive narrative report).CONCLUSIONA thorough work plan,which includes all of the anticipated tasks and deliverables,is an essential tool for c
99、onducting an effective investigation.Preserving,collecting,and review-ing data and documents can be one of the most time-con-suming and expensive aspects of an investigation;however,investigators and companies can more efficiently manage even large volumes of documents and data with early plan-ning
100、and thoughtful consideration of the issues discussed in this White Paper.Finally,preparation of a detailed budget,which includes line items for all of the tasks and deliverables identified in the work plan,allows investigators and compa-nies to more accurately project and manage costs as the investi
101、gation progresses.10Jones Day White PaperCHECKLISTSItems to Include in a Work Plan Goal(s)of the investigation Anticipated scope of the investigation Team members involved and roles Outside counselIn-house counsel and staff Third parties(if/as necessary),including e-discovery vendor,forensic account
102、ants,and contract attorneys Communication protocolsMeans and frequency of communication between outside counsel and client points of contact Division of responsibilities and determination of whether the investigation will be structured to be protected by attorney-client privilege or work product pro
103、tections Key categories of investigation tasksDocument preservation and collectionDocument review and productionLegal researchFact developmentWitness interviewsMeetings and communications regulators and investigators Expert analysis Third-party work,including forensic accountant review and analysis,
104、document collection and production Reporting to client and other stakeholdersInsurance coverage,claims,and recovery Remediation DeliverablesInvestigation presentation and client report on findingsWitness interview materials,including outlines and documentsWitness interview memoranda and/or summaries
105、White papers or presentations to regulators Document productions Potential outcomesInternal remedial measures related to employees or vendors,such as termination(of employment or of the vendors contract);disciplinary measures;additional compliance training or retraining of employees,etc.Enhancements
106、 to the companys ethics and compli-ance programInternal or external auditsSelf-reporting to regulatorsFurther investigation by regulatorsSettlement with regulators,including payment of fine or ongoing monitoringData and Document Management Checklist Document preservationCoordinate with corporate IT
107、personnel to preserve documents and suspend deletion practicesReview organizational charts and corporate policies related to mobile device usage and retention Conduct scoping interviews to determine potential custodians and record sourcesDecide on engaging external discovery vendorDistribute litigat
108、ion hold Document collectionConduct custodian interviewsCapture and process data from identified custodians and document sources(e.g.,ESI,hard drives,mobile devices,hard-copy files)Document review and productionAssess methods for narrowing data set -Search terms and date ranges(in coordination with
109、client and regulators)-De-duplication -Technology-assisted review11Jones Day White PaperDetermine who will review documents -In-house attorneys -Contract attorneys -Outside counsel Draft review protocolTrain first-level document reviewers and establish processes to answer questions promptly and qual
110、ity control checksConduct first-and second-level review and quality control checksIdentify and track key documentsIdentify privileged documents and log on privilege logProduce documents to regulators in connection with a request or subpoena,if applicableSummarize documents for client or for presenta
111、tion to stakeholders,if applicableBudget Checklist Scoping and planningInitial fact gathering(including scoping interviews)Legal researchDeveloping work plan Data preservation and collectionLitigation hold noticeESI,hard drives,mobile devices,and serversHard-copy documents Document reviewFirst-and s
112、econd-level reviews,as well as any necessary quality control reviewsTraining and monitoringReview platformTechnology-assisted review Foreign language reviewersTranslations Witness interviewsPreparation(outline,exhibits,etc.)Foreign language translatorsWeb-conference vs.in-personTravel expensesMemora
113、ndum or summary memorializing interview Subject-matter expertsForensic accountantsComputer forensic expertsIndustry experts Reporting to the client and other stakeholdersAnalysis and reporting to client and other stakeholders,including outside auditorsPotential government disclosure analysis Insuran
114、ceCoverage analysisClaims and recovery RemediationCompliance program and trainingPersonnel changes Personnel mattersIndividual or pool counsel for personnelPotential employee severance negotiations and parallel litigation12Jones Day White PaperLAWYER CONTACTSKaren P.HewittSan Diego+Erin Sindberg Por
115、terMinneapolis+Scott W.BradyPittsburgh+Terri L.ChaseMiami/New York+1.305.714.9722/+Sidney Smith McClungDallas+Peter J.Wang Hong Kong/Shanghai+Elizabeth B.McReeChicago+Sion Richards London+Cristina Prez Soto Miami/New York+1.305.714.9733/+Thomas Preute Dsseldorf+Bndicte Graulle Paris+Hank Bond Walthe
116、rWashington+ENDNOTES1 Alternative fee arrangements(e.g.,flat fees or“success”fees)should be evaluated with great care in the context of corporate internal investiga-tions and should generally be avoided if they may be reasonably viewed as inducing corner-cutting in the fact-gathering process or othe
117、rwise creating incentives inconsistent with the basic,truth-seeking objective of the investigation.2 For more about the DOJs recent guidance on mobile data and instant messages,see Jones Day Commentary,“DOJ Announces Major Changes to Corporate Criminal Enforcement Policies”(Sep.2022).3 To ensure pro
118、tection under the attorney-client privilege and work-product doctrine,the investigation budget and supporting materials should clearly state that they have been prepared in anticipation of potential litigation and that the purpose of the investigation is to provide legal ser-vices and advice.4 In at
119、torney-client privileged investigations,external experts should be retained by counsel so as to maintain the privilege.5 Note that other considerations may also influence the format of final substantive reporting(e.g.,privilege concerns and concerns over maintain-ing confidentiality generally).13Jon
120、es Day White PaperADDITIONAL CONTACTSUnited States Bethany K.Biesenthal Chicago+Scott W.BradyPittsburgh+Yvonne W.Chan Boston+Theodore T.ChungChicago+ Toni-Ann Citera New York+Roman E.Darmer Irvine+Richard H.Deane Jr.Atlanta+David J.DiMeglioLos Angeles+Anders Folk Minneapolis+ Louis P.GabelDetroit+Ha
121、rold K.Gordon New York+Fahad A.HabibSan Francisco+Barbara Mack Harding Washington+Justin E.HerdmanCleveland+Brian Hershman Los Angeles+Adam HollingsworthCleveland+Samir Kaushik Dallas+Kathy KeneallyNew York+James T.Kitchen Pittsburgh+Henry Klehm IIINew York+ Leigh A.KrahenbuhlChicago+ Andrew E.Lelli
122、ngBoston+James P.Loonam New York+Rebecca C.MartinNew York+Kendra L.MarvelLos Angeles+ Jordan M.MatthewsChicago+Shireen Matthews San Diego+Yvette McGee Brown Columbus/Cleveland+1.614.281.3867/+Joan E.McKown Washington+Cheryl L.OConnorIrvine+Mary Ellen Powers Washington+Brian C.Rabbitt Washington+14Jo
123、nes Day White PaperJeff Rabkin San Francisco/Silicon Valley+1.415.875.5850/+Colleen Noonan Ryan New York+Ronald W.Sharpe Washington+Rasha Gerges Shields Los Angeles+Evan P.Singer Dallas+Stephen G.Sozio Cleveland+Neal J.Stephens Silicon Valley+Edward Patrick Swan Jr.San Diego+Jason S.Varnado Houston+
124、Alexander J.Wilson New York+Kristin K.Zinsmaster Minneapolis+Europe Jos Bonilla Madrid+Adam R.Brown London+Glyn Powell London+Ansgar Rempp Germany+Paloma Valor Madrid+Rick van t Hullenaar Amsterdam+Middle East and Africa Sheila L.Shadmand Dubai+Heather Martin Dubai+Asia and Australia Stephen J.DeCos
125、se Tokyo+Steven W.Fleming Sydney+Lillian He Shanghai+Annie LeeksBrisbane+ 2022 Jones Day.All rights reserved.Printed in the U.S.A.Jones Day publications should not be construed as legal advice on any specific facts or circumstances.The contents are intended for general information purposes only and
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127、f this publication is not intended to create,and receipt of it does not constitute,an attorney-client relationship.The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.Jerry C.Ling San Francisco/Shanghai+Hiromitsu Miyakawa Tokyo+Daniel Mol
128、oney Melbourne+Holly SaraSydney+Zachary Sharpe Singapore+ Simon M.Yu Taipei+Latin America Luis Riesgo So Paulo+Guillermo E.Larrea Mexico City+Fernando F.Pastore So Paulo+Rebecca E.Kline,associate in the Minneapolis Office,and Scott B.Scheinberg,associate in the Pittsburgh Office,contributed to this White Paper.