What are E-Vestigations?
E-Vestigations are confidential, internal investigations that focus on search of client data and metadata. They use Artificial Intelligence to search and retrieve information relative to the client’s requested investigation, their information need. We use an AI machine training method for our E-Vestigations called Hybrid Multimodal Predictive Coding 4.0. The basic search method is explained in the open-sourced TAR Course. Details and background can be found on this blog: It’s Mueller Time! The Emergence of a New Legal Service Based on Artificial Intelligence.
The costs of E-Vestigations are far less than traditional, Mueller type investigations. E-Vestigations are done outside of Litigation and court involvement, usually to try to anticipate and avoid Litigation. Are the rumors true? Or are the allegations just a bogus attempt to extort a settlement? E-Vestigations are by nature private, confidential investigations, not responses to formal discovery. AI Assisted investigations rely primarily on what the data says, not the rumors and suspicions, or even what some people say.
The analysis of vast volumes of ESI is possible, even with millions of files, because E-Vestigations use Artificial Intelligence, both passive and active machine learning. Otherwise, the search of large volumes of ESI takes too long and is too prone to inaccuracies. That is the main reason this approach is far less expensive than traditional investigations.
The goal of E-Vestigation is to find quick answers based on the record. Interviews may not be required in many investigations and when they are, they are quick and, to the interviewed, mysterious. The answers to the information needs of a client are sometimes easily found. Sometimes you may just find the record is silent as to the issue at hand, but that silence itself often speaks volumes.
The findings and report made at the end of the E-Vestigation may clear up suspicion, or it may trigger a deeper, more detailed investigation. Sometimes the communications and other information found may require an immediate, more drastic response. One way or another, knowing provides the client with legitimate peace of mind.
The electronic evidence is most cases will be so overwhelming (we know what you said, to whom and when) that testimony will be superfluous, a formality. (We have your communications, we know what you did, we just need you to clear up a few details and help us understand how it ties into guys further up the power chain. That help will earn you a lenient plea deal.) This is what is happening right now, January 2019, with the investigation of Robert Mueller.
Defendants in criminal cases will still plea out, but based on the facts, on truth, not threats and lies. Defendants in civil cases will do the same. So will the plaintiff in civil cases who makes unsubstantiated allegations. Facts and truth protect the innocent. Most of that information will be uncovered in computer systems. In the right hands, E-Vestigations can reveal all. It is a proactive alternative to Litigation with expensive settlements. The AI features of E-Vestigations make it far less expensive than a full Muller investigation. Is it Mueller Time for your organization?
Robert Mueller never need ask a question of a witness to which he does not already know the answer based on the what the record said. The only real question is whether the witness will further compound their problems by lying. They often do. I have seen that several times in depositions of parties in civil cases. It is sheer joy and satisfaction for the questioner to watch the ethically challenged party sink into the questioner’s hidden traps. The “exaggerating witness” will often smile, just slightly, thinking they have you fooled, just like their own attorney. You smile back knowing their lies are now of record and they have just pounded another nail into their coffin.
E-Vestigations may lead to confrontation, even arrest, if the investigation confirms suspicions. In civil matters it may lead to employee discharge or accusations against a competitor. It may lead to an immediate out-of-court settlement. In criminal matters it may lead to indictment and an informed plea and sentencing. It may also lead to Litigation in civil matters with formal, more comprehensive discovery, but at least the E-Vestigating party will have a big head start. They will know the facts. They will know what specific information to ask for from the opposing side.
Eventually, civil suits will not be filed that often, except to memorialize a party’s agreement, such as a consent to a judgment. It will, instead, be a world where information needs are met in a timely manner and Litigation is thereby avoided. A world where, if management needs to know something, such as whether so and so is a sexual predator, they can find out, fast. A world where AI in the hands of a skilled legal team can mine internal data-banks, such as very large collections of employee emails and texts, and find hidden patterns. It may find what was suspected or may lead to surprise discoveries.
The secret mining of data, otherwise known as “reading other people’s emails without their knowledge” may seem like an egregious breach of privacy, but it is not, at least not in the U.S. under the computer use policies of most groups. Employees typically consent to this search as a condition of employment or computer use. Usually the employer owns all of the equipment searched. The employee has no ownership, nor privacy rights in the business related communications of the employer.
The use of AI assistants in investigations limits the exposure of irrelevant information to humans. First, only a few people are involved in the investigation at all because the AI does the heavy lifting. Second, the human reviewers are outside of the organization. Third, the AI does almost all of the document review. Only the AI reads all of the communications, not the lawyers. The humans look at far less than one percent of the data searched in most projects. They spend most of their time in study of the documents the AI has already identified as likely relevant.
The approach of limited investigations, of going in and out of user data only to search in separate, discreet investigations, provides maximum confidentiality to the users. The alternative, which some organizations have already adopted, is constant surveillance by AI of all communications. You can predict future behavior that way, to a point and within statistical limitations of accuracy. The police in some cities are already using constant AI surveillance to predict crimes and allocate resources accordingly.
The one-by-one investigation approach advocated here provides for more privacy protection. With E-Vestigations the surveillance is focused and time limited. It is not general and ongoing.
Five Virtues of E-Vestigations
Although I am not going to go into the proprietary details here of the E-Vestigations services we offer (contact me through my law firm if you want to know more), I do want to share what I think are the five most important traits of AI (robotic) assisted reviews: economics, confidentiality, stealth, speed and accuracy.
- Complete Secrecy.
- Artificial Intelligence means fewer people are required.
- Employee Privacy Rights Respected.
- Data need never leave corporate premises using specialized tools from our vendor.
- Attorney-Client Privilege & Work Product protected.
- Under the Radar Investigation.
- Only some in client IT need know.
- Sensitive projects. Discreet.
- Stealth forensic copy and review of employee data.
- Attorneys review off-site, unseen, via encrypted online connection.
- Private interviews; only where appropriate.
- Techniques designed for quick results, early assessments.
- Informal, high-level investigations. Not Litigation Discovery.
- High Speed Document Review with AI help.
- Example: Study of Clinton’s email server (62,320 files, 30,490 disclosed – 55,000 pgs.) is, at most, a one-week project with a first report after one day.
- Objective Findings and Analysis.
- Independent Position.
- Specialized Expertise.
- Answers provided with probability range limitations.
- Known Unknowns (Rumsfeld).
Clients are impressed with the cost of E-Vestigations, as compared to traditional investigations. That is important, of course, but the speed of the work is what impresses many. We produce results, use a flat fee to get there, and do so very FAST.
Certainly we can move much faster than the FBI reviewing email using its traditional methods of expert linear review. The Clinton email investigations took forever by our standards. Yet, Clinton’s email server had only 62,320 files, of which 30,490 were disclosed (around 55,000 pages.) This is, at most, a one-week E-Vestigation project with a first report after one day. Our projects are much larger. They involve review of hundreds of thousands of emails, or hundreds of millions. It does not make a big difference in cost because the AI, who works for free, is doing the heavy lifting of actual studying of all this text.
Most federal agencies, including the FBI, do not have the software, the search knowledge, nor attorney skills for this new type of AI assisted investigation. They also do not have the budget to acquire good AI for assist. Take a look at this heavily redacted selection from the official FBI collection of Clinton email and note that the FBI and US Attorneys office in Alexandra Virginia were communicating by fax in September 2015!
State and federal government agencies are not properly funded and cannot compete with private industry compensation. The NSA may well have an A-Team for advanced search, but not the other agencies. As we know, the NSA has their hands full just trying to keep track of the Russians and other enemies interfering with our elections, not to mention the criminals and terrorists.
The Truth Matters
Many lawyers who litigate today do not care what “really happened.” Very post-modern of them, but come on? A few lawyers just blindly believe whatever damned fool thing their client tells them. Most just say we will never know the absolute truth anyway, so let us just try our best to resolve the dispute and do what’s fair without any test of the evidence. They try to do justice with just a passing nod to the evidence, to the truth of what happened. We are not a fan. It goes against all of our core teachings and values and belief. My opinion is that it is not all just opinion, that there is truth.
I object to relativistic approach of trial by counter assertions of opinion at a mediation. After a life in the Law chasing smoking guns and taking depositions, I know for a fact that witnesses lie, that their memories are unreliable, all too human. But I also know that the writings made by and to these same witness often expose the lies, or, more charitably put, expose the errors in human memory. Fraudsters are human and almost always make mistakes. It is an investigator’s job to check the record to find the slip-ups in the con. (I dread the day when I have to try to trace a AI fraudster!)
I have been chasing and exposing con-men most of my adult life. I defended a few too. In my experience the truth has a way of finding its way out.
This is not an idealistic dream in today’s world of information floods. There is so much information, the real difficulty is in finding the important bits, the smoking guns, the needles. The evidence is usually there, but not yet found. The real challenge today is not in gathering the evidence, it is in searching for the key documents, finding the signal in the noise.
Electronic Evidence is Everywhere and Growing
Objective accounts of what happened in the past are not only possible, they are probable in today’s Big Data world. Your Alexa or Google speakers may have part of the record. So too may your iWatch or Fitbit. Soon your refrigerator will too. Data is everywhere. Privacy is often an illusion. (Sigh.) The opportunity of liars and other scoundrels to “get away with it” and fool people is growing smaller every day. Fortunately, if lawyers can just learn a few new evidence search skills, they can use AI to help them find the information they need.
E-Vestigations Can Help Make Sure That You Know What Is Really Going On in Your Organization
It is possible to find the truth, objective truth. All is not just opinion and allegations. Accurate forensic reconstruction is possible today in ways that we could never have imagined before. So is AI assisted search. The record of what is happening grows larger every day. That record written electronically at the time of the events in question is far more reliable than our memories. We can find the truth, but for that need to look primarily to the documents, not the testimony. That is not new. That is wisdom upon which almost all trial lawyers agree.
The truth is attainable, but requires dedication and skilled efforts by everyone on a legal team to find it. It requires knowledge of course, and a proven method, but also impartiality, discipline, intelligence and a sense of empathy. It requires experience with what the AI can do, and just as important, what it cannot do.
MORE INFORMATION? See It’s Mueller Time! The Decline of Subjectivism and Emergence of Another New Legal Service Based on Artificial Intelligence; and contact the author, Ralph Losey, at his lawfirm.