Digital Investigations Place Pressure on U.K. Government IT and Legal Teams

By Jon Chan and Laura Hayter, FTI Consulting  

A survey of the U.K. public found that during a public inquiry, most citizens want the government to prioritise evidence discovery above all else. At the same time, transparency, timeliness, and minimising costs were listed as additional important considerations. As the government faces a rising frequency and intensity of public inquiries and other types of disputes and investigations, meeting these expectations may be difficult in light of the growing role of complex, high-volume data in the fact-finding process.

A prime example are the recent disclosure failures surrounding the Post Office inquiry, in which it was found that process errors resulted in withholding of relevant documents and evidence relating to the charges against the postmasters under examination.

Across digital sources of information, this type of evidence discovery is referred to as eDisclosure, or e-discovery. This is defined as the process by which electronic information is identified, preserved, collected, processed, analysed, reviewed and produced as evidence in a legal dispute, public inquiry, investigation or other similar matter. eDisclosure as it is known today became a standard practice in the late 1990s, when most communications and records evolved from physical/analogue mediums (hard-copy records, faxes, etc.) to electronic ones (digital documents, email, file shares, etc.).

While today’s eDisclosure technologies and workflows have been long-established in the legal field, the practice is changing as the nature of communications and digital platforms continue to evolve, and data volumes and variety continue to explode rapidly. Without the right expertise and modern approaches to workflow and technology solutions, agencies risk excess cost, time and difficulty, and may struggle to ensure defensible, transparent results.

Additionally, certain new laws stand to spur an uptick in public sector eDisclosure demands. For instance, inquiries relating to the Building Safety Act, which came into force in 2022, have been initiated in the past year, and the law is opening the door for more litigation surrounding government construction projects. The Procurement Act, expected to take effect in late 2024, is another example. Additional types of matters that may lead to complex eDisclosure include:

• Coroner’s inquests
• Criminal investigations
• Health and safety investigations
• Public inquiries
• Procurement disputes
• Subject access requests
• Employment disputes
• Other disputes and litigation
   

The demands across these investigations are challenging for even the most sophisticated legal and IT departments. Below are specific nuances in the public sector that can add further complexity to typical eDisclosure processes.

• Lack of specialised guidelines and requirements. Unlike high court litigation, most public sector investigations will not have a defined rulebook to follow for document collection, processing, review and disclosure. eDisclosure parameters in inquests and independent inquiries are typically determined through a negotiation of protocols and document exchange requirements between parties, which may require input from outside experts to advise on the feasibility of information requests. Timelines are also an issue here, as different types of investigations will be accompanied by various requirements for the duration of the matter or the amount of time allotted to produce information.
• Legacy systems. Many organisations use a mix of proprietary and/or legacy systems (e.g., records systems, intranets, content management platforms), as well as structured data sources such as collaboration tools and messaging applications. Identifying and gathering information from co-mingled industry-specific systems and cloud-based sources often requires specialized, technical approaches. Additionally, as agencies move to meet the U.K.’s cloud-first directive, there will be an increase in the use of complex cloud systems, which all introduce unique, nuanced steps for data preservation and collection.  
• Value for money demands. Costs in government matters can be difficult to predict in advance as the full scope of eDisclosure is rarely known up front and often evolves as an investigation progresses. Given the need for the public sector to demonstrate value and contain costs, eDisclosure processes must be supported by advanced analytics, predictive coding and other technology-assisted review functionality, which supports the filtering out irrelevant documents, fast discovery of key facts, document prioritisation and quality control. Advances in generative artificial intelligence technology such as ChatGPT are also introducing new potential solutions and workflows to improve eDisclosure efficiency.
• Limited internal resources. Few organisations in the private sector have fully scalable teams to handle eDisclosure and investigatory processes when a legal or regulatory matter arises, even less so in the public sector, where agency infrastructure is not built to manage major investigations as a regular course of operations. When these issues arise, they can quickly escalate, placing excess burden on legal and/or IT professionals who do not have extensive experience responding to complex information requests.
• Secure processes. The information involved in eDisclosure is often sensitive, confidential and/or may contain personal data. The entire eDisclosure exercise must be conducted with careful attention to how information is secured, especially when transferred to outside parties, and that steps are taken to redact or remove any personal information that should not be shared.
• Accountability and transparency. Many public sector disputes and investigations are high-profile cases under significant public scrutiny, and even the lesser-known cases are typically part of the public domain. As such, there is extra attention to how these matters are conducted, accountability for how they are handled, and the requirements for the information surrounding them to be transparent. To adhere to these expectations, steps must be taken throughout each phase of the eDisclosure process to document approaches, demonstrate responsibility and maintain quality control.
• Core participants. These matters often involve multiple core participants, some of whom may be entitled to receive copies of data and others might be obligated to respond to related information requests. Coordinating efforts across numerous parties with different levels of sophistication is challenging. Additionally, there are challenges around managing confidentiality and protection of sensitive documents and/or national security when sharing data across numerous core participants.

Data challenges in eDisclosure and investigations are only becoming more complex as collaboration platforms, ephemeral messaging and other cloud-based emerging data sources introduce more, and more complex, data into the fray. It’s critical to have an experienced, reliable team of technical experts to navigate these issues and ensure defensible, accurate, timely extraction of actionable information. Public sector legal and IT teams should engage partners who meet the highest standards of eDisclosure best practices and have demonstrated success handling sensitive, high-stakes public matters.