Q&A: Renato Fazzone Discusses Technology Challenges in High-Stakes Investigations Across the DACH Region

Renato, you and your team have supported some of Germany’s largest and highest profile disputes and investigations. Can you provide background on team’s expertise and how that led to selection as a provider for the monitorship?

Our clients come to us when things get complicated. Rapid changes in the data landscape and corporate IT environments are creating an array of challenges for legal and compliance teams. Many of these challenges are exacerbated by the fact that they are often obscure and may not become known to a legal team until major problems arise downstream during a matter. For example, many legal teams still focus on email at the start of an investigation, but given the proliferation of chat and collaboration tools, collecting solely from email will likely result in overlooking a huge swath of potentially relevant communications and documents. Addressing these types of issues early on in a matter requires technical acuity as well as depth of knowledge about data complexities and the types of issues they can cause at various stages of the investigation lifecycle.  

Our teams, in Germany, the broader DACH region, EMEIA and globally are comprised of the top experts in e-discovery, digital forensics, emerging data sources, information governance and technology infrastructure. We’re recognized as trusted advisors to support our clients with their most complex issues across all these domains. We also maintain strong relationships with the leading law firms, which contributed to our selection for this most recent monitorship engagement. 

You’ve mentioned that e-discovery and digital investigations are becoming more challenging in general. Can you explain the drivers behind that trend? 

In looking at the evolution of investigations in Germany over the past 15 years, there have been several notable shifts. First is that auditors were formerly the primary driver of investigations, whereas now, law firms and government regulation (e.g., compliance, competition, white collar crime, etc.) are leading that charge. This has caused an increase in the volume of investigations as well as the type of information that is targeted in discovery.

As part of that change, and also due to technology advancements, the focus of investigations moved from individual interviews, paper documents and financial records to where we are today with data. Now, complex data types from dozens or hundreds of disparate sources are the primary focus of most investigations, far outweighing the attention given to individual interviews or legacy records. So, the role of technical experts and digital forensics specialists has become much more important.

Let’s dig into that a bit more. What are some of the technical issues legal teams might encounter when dealing with new forms of data in an investigation?

It’s first important to note that as data has become more complex, the technology that’s used to support the investigative process has also evolved. This has been a double-edged sword for legal teams. On one hand, powerful analytics make it easier to find relevant information faster across large datasets. Additionally, forms of artificial intelligence are becoming more practical for use in discovery. This helps minimize cost and risk in complex matters and can lead to a richer understanding of the facts surrounding a case.

However, the ease of use of some tools have also led to a misconception that building in-house e-discovery infrastructure is a simple task, which is not the case at all. Even with a foundation of highly capable tools, effective e-discovery functions require the support of a team with specialized knowledge in IT infrastructure, generative AI, cloud applications (e.g., Microsoft 365 and Google Workspace) and other emerging data sources such as WhatsApp and Slack. It’s often untenable for a law firm or corporate legal team to allocate the internal resources needed to establish and maintain a robust team of technical experts. Therefore, it’s important for them to understand the nuances of today’s data challenges and recognize the limitations of their technical capabilities. With this awareness, they are better positioned to engage outside domain experts at the right time.

Is there anything else you think clients need to be aware of regarding emerging data sources or other data challenges?

These issues are only going to continue expanding. Data volumes and complexities are increasing exponentially all the time. Also, as more organizations adopt generative AI, such as through Microsoft Copilot, there will be a new wave of considerations. These might include whether user queries to generative AI should be considered in scope in discovery, where and how user activity in generative AI applications is stored (and thus accessed for collection and analysis), and how to distinguish human-generated documents and messages from machine-generated materials.

In parallel, regulatory agencies are ready to scrutinize new forms of data and require organizations to include them within the scope of their investigations. For example, the European Commission is examining changes to laws surrounding inspection and seizure of documents, including the potential to expand powers to probe new sources of data. Organizations should be prepared for an increase in frequency and complexity of conversations with regulatory agencies around how to navigate data nuances such as the use and meaning of emojis, whether hyperlinked content qualifies as attachments, and how to evaluate documents with multiple cloud versions.  
 

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The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.