Internal Investigations “à la Française”
In France, an internal investigation can introduce an array of key challenges for in-house and outside counsel who will need forensic technology experts to navigate new data challenges and ensure their internal investigation obligations are aligned with new guidelines released by the France National Bar Council (CNB).
Issued with the enactment of the Sapin II law, France’s position on corruption—and its government’s intentions to ramp anti-corruption efforts—has aligned with that of the U.S., United Kingdom and other leaders on the global stage. One of the key aspects of these corruption prevention efforts is the implementation of internal investigations, a relatively new concept for French corporations.
In June, the France National Bar Council (CNB) issued guidelines to help lawyers understand the ethical, practical and defensibility standards for internal investigations. Notable in the CNB’s standards is the recommendation that companies use a “forensic service provider than can host all the data in France and enable a review of the information and documents that match the request made by the foreign authorities in France.”
In any jurisdiction, an internal investigation can introduce an array of challenges for in-house and outside counsel. In France, lawyers may face additional unique key challenges: cultural barriers, GDPR and privacy, cross-border considerations (The French Blocking Statute may have implications for internal investigations that develop into self-reporting to foreign authorities), technology complexities.
Given the large volume of electronically stored information at stake in an internal investigation, forensic technology experts are often needed to prepare and perform the investigation alongside outside counsel. The importance of forensic expertise has been emphasised by the CNB.
Collecting data from the company servers and employee devices and processing and uploading data into an e-discovery platform so data can be organised, searched and tagged efficiently is a nuanced process that requires a degree of expertise to maintain chain of custody and ensure defensibility of the investigation’s findings.