Fact-finding for a litigation or investigation? Plan ahead before diving in

Planning the best ways to find key documents will pay off in the long run.  

Getting to the bottom of alleged claims is often a high-stakes race to find critical information amidst an avalanche of data. Regardless of whether you are conducting an internal investigation, early case assessment, or preparing for depositions, there is no time to waste. Although it’s surely tempting to dive right into document reviews to find the key documents that will shed light on the matter at hand, litigators and investigators know that good preparation leads to a better result.

Conducting fact-finding in a reactive manner by skipping upfront preparation diminishes the ability to systematically investigate the full set of allegations and compromises the development of  a comprehensive factual narrative. Here are a few things to keep in mind as you prepare.

Consider the source(s).

To conduct efficient fact-finding through key document identification, you need to first take stock of the various sources of data available for review and then map them to the type of evidence they may contain.

Is the evidence you are looking for likely to reside in reports, communications, or memos? Are there particular sets of custodial data that are likely more important to understanding the case than others? Are inbound consumer marketing solicitations to employees, or bulk email news alerts likely to contain important information for the case? Taking the time to consider these questions and articulate hypotheses about where important evidence may reside allows you to effectively prioritize which data sets to search through first.

What are the targets?

In addition to prioritizing the data, it’s critically important to articulate the array of evidence you are looking for based on the set of allegations at issue. Your understanding of the case will certainly evolve as fact-finding progresses, but defining evidentiary targets in advance better enables you to assess later on whether you have diligently investigated all possible angles. Moreover, defining discrete targets for fact-finding allows you to articulate searches at a more granular level. Rather than leveraging one fully encompassing crude keyword search to hunt for key documents, creating a net of many targeted searches will lead to more comprehensive results in a more efficient manner.

What tools should you use?

Another key to efficient and successful fact-finding is selecting the right data analytics tools that will help reduce the noise and boost the signal. For example, threading email conversations and identifying near-duplicate sets of documents are two of the many approaches available to winnow down and prioritize the set of documents you perform targeted searches on. Techniques such as name normalization  can also be especially helpful when your aim is to understand who is communicating with whom about which underlying facts. It might even be worth investigating how to best tailor the way the data is indexed for searching — for instance, emojis are often used in key conversations useful in investigations yet they are rarely indexed for search in review platforms unless you explicitly specify them to be.

Understanding the data, articulating an evidentiary approach, and equipping yourself with the right data analytics helps ensure that critical facts do go undiscovered. Although it’s natural to want to get right into the thick of it, skilled counsel know that high-stakes fact-finding is a complex affair requiring forethought and preparation. And once in place, a well-informed search strategy can be quickly executed allowing your team to spend more time understanding the significance of key documents, and less time re-evaluating and tinkering with approaches for finding them.

Want to know more? Watch “Winning the Race for the Facts: Case Studies on How to Leverage Technology and Search Expertise for Investigations and Case Preparation,” a joint webinar with H5 and Covington & Burling, for further tips on finding key documents for investigations.