e-Discovery - tips to a successful strategy:

Frances McLeod, Co-founding Managing Partner, Forensic Risk Alliance, USA
Greg Mason, Co-founding Partner, Forensic Risk Alliance, USA

The wealth of electronic information generated today makes pre-litigation planning for corporate lawyers and their legal advisors more important than ever before. The huge volume of data to identify, collect, store, process, search and analyse triggers fear of high costs and logistical problems before the data is actually used to establish fact patterns or put together arguments. In the context of cross-border serious economic crime – regulatory action, internal investigation or simply “follow- on” civil litigation – data volume is just the first of the the challenges that lie ahead. Still be to wrestled with are a number of European and US legal hurdles: European blocking statutes and data privacy/secrecy laws, privilege differences from country to country and the logistics of managing enormous amounts of data without inadvertently transferring it across jurisdictions or to the ‘wrong’ party.

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United Kingdom USA e-Discovery Consultant March 2012 Vol. 5, No. 18, Winter 2012

Frances McLeod

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Frances McLeod is one of the co-founders of FRA and the Managing Partner. She advises diverse clients on anti-corruption (FCPA/OECD/ Bribery Act) issues in terms of response to internal and external investigations, in a compliance context, and in related civil and criminal litigation in a variety of jurisdictions. Having lived and worked in the developing world, the US and Europe, she has first-hand experience in balancing regulatory demands with the working practices of G7/G20 and emerging markets. In addition, she advises a number of European clients on data protection, privacy and related matters in the context of US-driven discovery requests, with an emphasis on providing practical solutions that balance potential conflicts of law. Ms McLeod was responsible for the design and implementation of the claim-evaluation and administration systems of the US$1.3 billion Swiss Bank and US$2.5 billion German Slave Labor Holocaust settlements advised on by FRA. In order to develop appropriate systems for such complex and challenging claims, she drew on her experience in banking, evaluating long tail liabilities, corporate and banking/insurance archaeology , forensic accounting and asset tracing. She has been involved in advising all of FRA’s clients responding to the oil-for-food investigations in respect of their investigative and forensic accounting needs – from contributing to the formulation of strategy , presenting complex financial analysis and data, electronic and other discovery , to conducting an evaluation of the database system that underpinned the whole oil-for-food programme, and preparing witnesses for interview. Drawing on experience gained in the Swiss Bank investigations, Ms McLeod was instrumental in finding solutions for a number of clients to allow for the presentation of analysis in a manner that was not in breach of Swiss banking secrecy and/or the Swiss Criminal Code. After graduating from Oxford University with a Masters degree, she spent six years in investment banking working in the M&A divions of Lazards and Schroders in London and of HSBC in Indonesia.

Greg Mason

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Greg Mason is one of the co-founding partners of FRA. His expertise lies in database architecture, database programming and software design, mass data analysis and data mining for the purposes of investigations, disputes and litigation. He has been retained as an expert to provide evidence on e-discovery and electronic evidence methodology and practice, and database name matching. He has expertise in many database tools and programming languages as well as in complex financial and transactional analysis. Mr Mason has worked on a high-profile FCPA matter where he analysed the internal financial database, comprising over 21 million transactions made in over 25 countries, for a global oil services company for presentation to SEC investigators. He has also developed a tailored database and e-discovery review platform to review documents and capture electronic financial information for the forensic audit of monies related to over 500 bank accounts for investigation of bribery allegations in connection with a Central Asian government’s privatisation of its national oil company . Mr Mason has provided investigative and forensic accounting consulting, complex financial analysis, e-discovery processing and transactional data reconstruction, and reconciliation in response to a UN oil-for-food investigation. He went on to perform analysis of the oil-for-food management database, which triggered payments under the programme. He carried out an audit and asset-tracing exercise of all the accounts of an employee of a high-profile client in its response to the UN and US congressional oil-for-food investigations. After graduating from Radford University , Virginia, with a degree in statistics and mathematics, Mr Mason spent three years performing statistical testing and analysis for the US Department of Defense, evaluating the performance of sophisticated defence systems. He then moved to the disputes and investigations group at PricewaterhouseCoopers, before co-founding FRA in 1999.

FRA (Forensic Risk Alliance)

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Forensic Risk Alliance (FRA) www.forensicrisk.com has offices in the UK, USA, Switzerland and France. It assists businesses resolve complex and high-risk financial, legal and regulatory challenges. Its people provide independent, conflict-free advice and litigation support services. FRA provides forensic accounting and e-Discovery consulting. It frequently collects and analyses data for use in legal disputes and investigations (often cross border) in a number of areas including: anti-trust, fraud, bribery and corruption investigations. Members of the FRA team also provide expert witness testimony in court when required. From our offices in the United States and Europe we have serviced and supported clients in nearly every major jurisdiction across the globe. Recent projects have taken us to Canada, Israel, Germany, Switzerland, France, the Netherlands, the UK, the US, Spain, Denmark, Norway, Sweden, Belgium, the Philippines, Indonesia, Thailand, the PRC, Nigeria, Iraq, the UAE, Jordan, Brazil and Australia.

United Kingdom USA e-Discovery Consultant March 2012 Vol. 5, No. 18, Winter 2012