eDiscovery Relieves Time Pressure in Competition Cases

Let us take a break from litigation and examine another important area of law in which eDiscovery technology regularly plays a large part. Competition Law (or Anti-Trust as it is known in the USA and parts of the EU, whilst China and Russia refer to it as anti-monopoly) requires and receives technology assistance throughout the world. Indeed I have been involved in many Competition cases in my career and confidentiality prevents me from naming names (smiling, because many Competition cases begin with a whistleblower!). However, I can say I have worked on cases in industries such as airlines, telecommunications, truck manufacturers, financial services, engineering, retail and others. Some are allegations of pricing cartels; abuse of dominance in the market; “stealing” designs or other restrictive practices.
Here in SA it is sensibly referred to as Competition, and since I have been here I have been impressed with what I have seen and read about the work of The Competition Commission. They appear to be very busy to begin with but I like the look of what they are doing. Their most recent reported investigation is into a series of banks and financial institutions for allegedly fixing the price of the rand. This investigation relates to 11 well known institutions at the moment, but there could be more. What is interesting is that this investigation was triggered by similar investigations in the UK and USA which resulted in huge fines. Here in SA, if the allegations are proved, then the same results can be expected. There is currently a “suggestion” that the Banks have not been forthcoming with cooperation with the Commission (Business Times 14 June 2015 “Banks not coming clean on collusion”), though it is unclear whether they have commenced their own internal investigations. It would be hard to believe that they have not become involved in internal investigations, and these often involve the use of technology to which I refer often. Inside Counsel published an interesting article about how institutions can help themselves in these matters.

It is also pertinent to note that some information may have gone to the Commission via a “whistleblower”, which is often the case, as I mentioned earlier. I find it fascinating that some companies such as The Big Four etc. have staff and departments dealing just with “whistleblower” activities including a confidential hotline. Clearly there is a paradigm shift here!

In South Africa the issue is governed by the Competition Act 1998, with the Commission investigating possible contraventions of the Act. The Screening Unit filters the findings or complaints and then decides whether to drop the matter or refer it for full investigation, or request more information from the complainant. If there is to be a full investigation then one of the two divisions, Cartels and Enforcements & Exemptions deal with it and once complete, the Commission’s Litigators take over and prepare the case for the Tribunal and Competition Appeal Court if necessary. It should also be noted that the Commission has published draft guidelines for public discussion setting out how penalties can be calculated but also indicating a change whereby a holding company can be held responsible for the actions of its subsidiaries in regard to Competition matters – see this excellent article from Cliffe Dekker DLA.

How does eDiscovery technology assist in these cases? Inevitably, the lawyer and their client will need to investigate, and investigate quickly, by examining relevant data. Very often these cases commence with a “dawn raid” when documents, data and sometimes computers, servers and other devices are seized, often without warning. There is huge pressure to search, find, eliminate or otherwise, relevant data and documents and the deadlines are stringent. All of this can be done using eDiscovery technology in exactly the same way as for litigation cases. Categorising the documents; searching for relevance; separating out custodians; and preparing detailed submissions (similar to Trial Bundles in litigation cases) are just some of the features where the technology assists.

Just as in litigation cases if you know your data you know your case, so it is crucial to understand exactly what there is. Furthermore, and this is vitally important, actions taken by the company under investigation can go a long way to mitigating penalties and we refer to this as the “race for leniency”. Many of the cases in which I have been involved were precisely that, and efforts to investigate thoroughly the actions of employees etc. and to take decisive measures can materially assist.
All of the functionality of processing and reviewing data, as in litigation cases, comes into play here to the client’s benefit. My experience is that Commissions tend not to look favourably on delays or requests for further time and so the pressure heightens to prepare and deliver findings.
To summarise, we may call it Litigation Support and eDiscovery but don’t exclude Competition cases as worthy and valuable sources for the same technology.