Deep Web: Legal Due Diligence
Editor’s Note: This is a guest article by Lisa Brownlee. The 2015 edition of her book, “Intellectual Property Due Diligence in Corporate Transactions: Investment, Risk Assessment and Management”, originally published in 2000, will dive into discussions about using the Deep Web and the Dark Web for Intellectual Property research, emphasizing its importance and usefulness when performing legal due-diligence.
Lisa M. Brownlee is a private consultant and has become an authority on the Deep Web and the Dark Web, particularly as they apply to legal due-diligence. She writes and blogs for Thomson Reuters. Lisa is an internationally-recognized pioneer on the intersection between digital technologies and law.
In this blog post I will delve in some detail into the Deep Web. This expedition will focus exclusively on that part of the Deep Web that excludes the Dark Web. I cover both Deep Web and Dark Web legal due diligence in more detail in my blog and book, Intellectual Property Due Diligence in Corporate Transactions: Investment, Risk Assessment and Management. In particular, in this article I will discuss the Deep Web as a resource of information for legal due diligence.
When Deep Web Technologies invited me to write this post, I initially intended to primarily delve into the ongoing confusion regarding Deep Web and Dark Web terminology. The misuse of the terms Deep Web and Dark Web, among other related terms, are problematic from a legal perspective if confusion about those terms spills over into licenses and other contracts and into laws and legal decisions. The terms are so hopelessly intermingled that I decided it is not useful to even attempt untangling them here. In this post, as mentioned, I will specifically cover the Deep Web excluding the Dark Web. The definitions I use are provided in a blog post I wrote on the topic earlier this year, entitled The Deep Web and the Dark Web – Why Lawyers Need to Be Informed.
Deep Web: a treasure trove of and data and other information
The Deep Web is populated with vast amounts of data and other information that are essential to investigate during a legal due diligence in order to find information about a company that is a target for possible licensing, merger or acquisition. A Deep Web (as well as Dark Web) due diligence should be conducted in order to ensure that information relevant to the subject transaction and target company is not missed or misrepresented. Lawyers and financiers conducting the due diligence have essentially two options: conduct the due diligence themselves by visiting each potentially-relevant database and conducting each search individually (potentially ad infinitum), or hire a specialized company such as Deep Web Technologies to design and setup such a search. Hiring an outside firm to conduct such a search saves time and money.
Deep Web data mining is a science that cannot be mastered by lawyers or financiers in a single or a handful of transactions. Using a specialized firm such as DWT has the added benefit of being able to replicate the search on-demand and/or have ongoing updated searches performed. Additionally, DWT can bring multilingual search capacities to investigations—a feature that very few, if any, other data mining companies provide and that would most likely be deficient or entirely missing in a search conducted entirely in-house.
What information is sought in a legal due diligence?
A legal due diligence will investigate a wide and deep variety of topics, from real estate to human resources, to basic corporate finance information, industry and company pricing policies, and environmental compliance. Due diligence nearly always also investigates intellectual property rights of the target company, in a level of detail that is tailored to specific transactions, based on the nature of the company’s goods and/or services. DWT’s Next Generation Federated Search is particularly well-suited for conducting intellectual property investigations.
In sum, the goal of a legal due diligence is to identify and confirm basic information about the target company and determine whether there are any undisclosed infirmities with the target company’s assets and information as presented. In view of these goals, the investing party will require the target company to produce a checklist full of items about the various aspects of the business (and more) discussed above. An abbreviated correlation between the information typically requested in a due diligence and the information that is available in the Deep Web is provided in the chart attached below. In the absence of assistance by Deep Web Technologies with the due diligence, either someone within the investor company or its outside counsel will need to search in each of the databases listed, in addition to others, in order to confirm the information provided by the target company is correct and complete. While representations and warranties are typically given by the target company as to the accuracy and completeness of the information provided, it is also typical for the investing company to confirm all or part of that information, depending on the sensitivities of the transaction and the areas in which the values–and possible risks might be uncovered.