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<\/a><\/div>\nSilently present at last Tuesday\u2019s strategy session is a bot himself. It documents (reorts) what was spoken and by whom and when, more or less.<\/p>\n
It stores that record on an account in the cloud that someone set up and later forgot. That record is typically among the first things investigators in a federal fraud investigation want and is often the subject of a subpoena.<\/p>\n
In the past few years, AI note-takers have breathed new life into the mundane task of taking notes.In the past few years, AI note takers have found their right footing in the world of office equipment. They are riding in meetings off invite calendars, transcribing during the meeting, creating action items, distributing an edited meeting summary to all before coffee cools down.<\/p>\n
Often, companies have not considered what that means when something comes along like a grand jury subpoena.<\/p>\n
The Bot in the Meeting Is Making Business Records<\/strong><\/h3>\nAll of those auto-generated transcripts are documents. It\u2019s stored on a server, includes a time stamp, is associated with a known username and can be exported. The working definition is that this information falls into two categories: E-mail or any machine-produced transcript of the package or a signed Memo, and courts have had none of this.<\/p>\n
In fact, according to a law firm analysis<\/a> on these tools, if a company captures AI transcript and summaries are captured during normal business operations, they will be discoverable in the same manner as is any other document, rendering privileged strategy discussions, deal terms, and company disagreement a potentially discoverable product of the AI tool.<\/p>\nThe volume is most underestimated part by executives. In one quarter, a mid-sized organization with note taking employees in sales, finance, HR and the C-suite can produce thousands of hours of valuable searchable transcript.<\/p>\n
Investigators love \u201csearchable.\u201d Ten years ago, they had to depose people about what was said in a meeting. Now they can grep for the phrase.<\/p>\n
Fraud Cases Live and Die on What People Said in the Room<\/strong><\/h3>\nFederal fraud charges almost always turn on intent. Prosecutors have to show that the defendant knew the billing was wrong, knew the numbers were inflated, knew the disclosure was misleading. That is a hard case to build from spreadsheets alone.<\/p>\n
It gets much easier when there is a transcript of the CFO saying, on a Tuesday morning call, that the aggressive revenue recognition approach is probably not going to survive an audit. The DOJ has publicly told line prosecutors how to weigh what a company knew and when. Its Justice Manual<\/a> chapter on charging business organizations directs prosecutors to look hard at the quality of a company\u2019s compliance program and its willingness to hand over non-privileged records. Auto-generated meeting transcripts are exactly the kind of non-privileged record that ends up on the table in that conversation.<\/p>\nDeleting the Transcript After the Subpoena Is a Separate Crime<\/strong><\/h3>\nAfter it is discovered that the bot has recorded all of the leadership meetings over the past two years, the instinct is to cleanse. This instinct is very harmful. The duty to preserve also kicks in when litigation is reasonably expected or a federal investigation<\/a> has begun, with the obligation to preserve starting at the same time as the obligation to preserve begins with emails, namely, at the time of the commencement of the litigation or reasonably expected commencement of a federal investigation.<\/p>\nIn Rule 37 (e), a court may hit a party with the toughest possible sanctions such as instructing the jury they should believe that the destroyed information was bad for that party or granting the plaintiff a default judgment upon showing destruction with an intentional attempt to hide it from the other party. There\u2019s the possibility of adding obstruction of justice charges to the mix, too. Account\u2019s note taking function has been altered after receipt of a preservation letter to such an extent that it has brought to an end careers.<\/p>\n
What a Careful Company Should Actually Do<\/strong><\/h3>\nNobody needs to rip the tools out. They are genuinely useful. The point is to treat them like the records systems they are, not like a convenience app somebody installed for the sales team.<\/p>\n
The volume is most underestimated part by executives. In one quarter, a mid-sized organization with note taking employees in sales, finance, HR and the C-suite can produce thousands of hours of valuable searchable transcript.<\/p>\n
Investigators love \u201csearchable.\u201d Ten years ago, they had to depose people about what was said in a meeting. Now they can grep for the phrase.<\/p>\n
Fraud Cases Live and Die on What People Said in the Room<\/strong><\/h3>\nFederal fraud charges almost always turn on intent. Prosecutors have to show that the defendant knew the billing was wrong, knew the numbers were inflated, knew the disclosure was misleading. That is a hard case to build from spreadsheets alone.<\/p>\n
It gets much easier when there is a transcript of the CFO saying, on a Tuesday morning call, that the aggressive revenue recognition approach is probably not going to survive an audit. The DOJ has publicly told line prosecutors how to weigh what a company knew and when. Its Justice Manual<\/a> chapter on charging business organizations directs prosecutors to look hard at the quality of a company\u2019s compliance program and its willingness to hand over non-privileged records. Auto-generated meeting transcripts are exactly the kind of non-privileged record that ends up on the table in that conversation.<\/p>\nDeleting the Transcript After the Subpoena Is a Separate Crime<\/strong><\/h3>\nAfter it is discovered that the bot has recorded all of the leadership meetings over the past two years, the instinct is to cleanse. This instinct is very harmful. The duty to preserve also kicks in when litigation is reasonably expected or a federal investigation<\/a> has begun, with the obligation to preserve starting at the same time as the obligation to preserve begins with emails, namely, at the time of the commencement of the litigation or reasonably expected commencement of a federal investigation.<\/p>\nIn Rule 37 (e), a court may hit a party with the toughest possible sanctions such as instructing the jury they should believe that the destroyed information was bad for that party or granting the plaintiff a default judgment upon showing destruction with an intentional attempt to hide it from the other party. There\u2019s the possibility of adding obstruction of justice charges to the mix, too. Account\u2019s note taking function has been altered after receipt of a preservation letter to such an extent that it has brought to an end careers.<\/p>\n
What a Careful Company Should Actually Do<\/strong><\/h3>\nNobody needs to rip the tools out. They are genuinely useful. The point is to treat them like the records systems they are, not like a convenience app somebody installed for the sales team.<\/p>\n
Deleting the Transcript After the Subpoena Is a Separate Crime<\/strong><\/h3>\nAfter it is discovered that the bot has recorded all of the leadership meetings over the past two years, the instinct is to cleanse. This instinct is very harmful. The duty to preserve also kicks in when litigation is reasonably expected or a federal investigation<\/a> has begun, with the obligation to preserve starting at the same time as the obligation to preserve begins with emails, namely, at the time of the commencement of the litigation or reasonably expected commencement of a federal investigation.<\/p>\nIn Rule 37 (e), a court may hit a party with the toughest possible sanctions such as instructing the jury they should believe that the destroyed information was bad for that party or granting the plaintiff a default judgment upon showing destruction with an intentional attempt to hide it from the other party. There\u2019s the possibility of adding obstruction of justice charges to the mix, too. Account\u2019s note taking function has been altered after receipt of a preservation letter to such an extent that it has brought to an end careers.<\/p>\n
What a Careful Company Should Actually Do<\/strong><\/h3>\nNobody needs to rip the tools out. They are genuinely useful. The point is to treat them like the records systems they are, not like a convenience app somebody installed for the sales team.<\/p>\n
In Rule 37 (e), a court may hit a party with the toughest possible sanctions such as instructing the jury they should believe that the destroyed information was bad for that party or granting the plaintiff a default judgment upon showing destruction with an intentional attempt to hide it from the other party. There\u2019s the possibility of adding obstruction of justice charges to the mix, too. Account\u2019s note taking function has been altered after receipt of a preservation letter to such an extent that it has brought to an end careers.<\/p>\n