Just as the Superfund law's broad conception of liability led to a growing and lucrative practice for environmental audit companies, the same is true for the FCPA. Some of the largest law firms in the world, with the depth and geographic coverage to mount these investigations, offer specialized FCPA practices.
The key difference is this: If you are doing an environmental audit, you know exactly where the property is. You can send out your teams to inspect the ground, review the chemical history of the plant, check where materials were dumped and even drill for problems. It may get expensive, but at least you know where to look and what to look for.
FCPA Investigations Are Not Easy
An FCPA investigation presents a different sort of problem. To start, you may not even know what kind of fraud you are looking for. Counsel can't exactly assemble the staff and ask for a show of hands from anyone who has bribed a foreign official. Bribery isn't something you are likely to put on your resumé or Facebook page.
What should you do? The law firms we work with often start by talking to people and collecting their documents. What can you learn about how they deal with government officials? What do the documents show? What about the expense accounts and other money transfers?
Search is a key part of the answer. Modern search engines allow you to search millions of pages in a variety of languages with the click of a mouse. But what search terms do you use? That's where things can get really difficult.
Traditional Search Doesn't Cut It
Traditional Boolean search has a part to play in an FCPA case, but it isn't always the most effective method and it could be risky to rely on it exclusively. Why? Typically, we don't know exactly what we are looking for, let alone the specific terms that might elicit those documents. Searching for "bribe" within 10 words of "government official" probably won't do the trick. Searching for the names of the government officials in question might help — assuming, of course, you already know the names.
Boolean search becomes even less useful in FCPA due diligence investigations. This is because you are essentially trying to prove a negative — that employees in the company to be acquired were not bribing public officials. That requires counsel to comb company records thoroughly to determine that nothing improper went on.
This is where a nontraditional form of search can be helpful.
Think about the traditional approach to search: You ask the documents specific questions and hope they answer with helpful information. This is a bit like the children's game Go Fish. We kind of know what we are looking for and the trick is to frame queries to find out if it is there. We try to think of key term variants and frame our searches to find good stuff.
"Give me all the schemes our newly acquired company has used to convince government officials to give us the business." Answer: "Go fish."
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