CD: Could you provide an overview of how information recovered from digital technologies may contribute to evidence in a fraud investigation or dispute?

Colston: If you act for a claimant, seeking to obtain relevant data from dishonest defendants early on is a first essential to successfully tracing stolen assets and identifying the co-conspirators or those who, innocently or otherwise, hold relevant data. Search, freezing and Norwich Pharmacal disclosure orders (NPOs) are civil court ‘weapons’ of first choice to achieve this. These civil orders are designed to obtain data by catching the targets unaware so they do not have time to hide or destroy the data. Internet service providers (ISPs) and banks are also frequent targets for NPOs in order to obtain, without notice to the account holder, full details to help trace stolen monies and establish the wrongdoers or the wrongdoing. It is true there is significant frontloading of legal costs but such orders give you a lot of ‘bang for your buck’ and often accelerate an early disposal of the case.

Epps: If you are acting for a company under investigation by a UK enforcement agency, such as the Serious Fraud Office, you could feed electronic copies of documents into advanced fraud analytics engines which use artificial intelligence (AI) to get to the key information fast. That targeted insight is then available to the company under investigation so it can prioritise documents that should be looked at first and therefore get ahead in understanding what has happened. The 2017 High Court decision on the scope of legal professional privilege (LPP) in the ENRC case (Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd) has, in practice, made defence lawyers in white-collar crime investigations think particularly carefully about creating new data, such as interview notes, since those notes or statements made by an employee during an internal investigation may not be privileged.

Apr-Jun 2018 issue

Brown Rudnick LLP

IT Group UK