Cartels are proved more and more through e-mails and messages. Those cooperating with CADE need to deliver them intact; those under investigation need to know what they really show.
They are two different subjects. A violation of the economic order is an act that limits or harms free competition, regardless of fault (Lei 12.529/2011, the Brazilian competition statute, art. 36). The best-known example is the cartel: an agreement between competitors on prices, allocation of customers or territories, or bid rigging in public tenders (art. 36, § 3º, I). The body that investigates and adjudicates is CADE, Brazil's antitrust authority.
Unfair competition is a conflict between companies: product copying, diversion of customers, use of trade secrets. The dispute runs in the courts, under the Lei da Propriedade Industrial, the Brazilian industrial property statute, and has its own page in Intellectual Property, Trade Secrets and Unfair Competition.
In both cases, the evidence is usually digital. What changes is who asks and what needs to be proved.
Cooperation must result in the identification of the other participants and in information and documents that prove the violation (Lei 12.529/2011, art. 86). E-mails, messages and spreadsheets are worth more when they arrive with origin, hash and chain of custody. The same applies to the cease-and-desist commitment (Lei 12.529/2011, art. 85), when the company needs to demonstrate the conduct and the moment it stopped.
Before approaching CADE, the company needs to know whether there was conduct and who took part. Forensic collection of corporate e-mail, laptops and phones, with searches for terms defined with the lawyers, answers that without alerting those involved. If the evidence shows no conduct, the report says so.
The law allows CADE's General Superintendence to inspect the company and copy electronic data, and to apply to the courts for search and seizure of computers and files (Lei 12.529/2011, art. 13, VI, "c" and "d"). Technical monitoring records what was copied, from where and with which hash.
A message out of context, a conversation attributed to the wrong person, a file with an altered date. The examination tests the prosecution's hypotheses one by one: authorship, integrity, context and chronology.
Transactions subject to CADE review may not be consummated before clearance (Lei 12.529/2011, art. 88, § 3º); e-mails and systems integrated ahead of time show whether that happened. Those harmed may seek cessation and damages in the courts (Lei 12.529/2011, art. 47).
A printed e-mail does not show who wrote it or whether it was altered. Before discussing the meaning of the messages, someone needs to ensure they are what they appear to be. Preservation with hash and chain of custody makes the evidence verifiable by any of the parties, and the custody record is delivered, as a reference, within 24 hours.
In public tenders, collusion sometimes appears in the files themselves: bids from different companies with the same author in the metadata.
The forensic examination gives technical support to the company and its lawyers. They are the ones who manage the relationship with CADE.
A company discovers, through an internal report, that two sales managers were exchanging price lists with competitors through a messaging app. Management considers proposing a leniency agreement, but part of the conversations was deleted from the corporate phones.
The examination preserves the devices and mailboxes without alerting those involved, recovers part of the deleted content and cross-references the messages with the price spreadsheets and meeting calendars.
The lawyers receive a set organised by date, with the origin and hash of each item, and decide on that basis whether a proposed agreement is viable.
In a dawn raid requested by CADE, a company's laptops are copied. The case rests on a spreadsheet of agreed prices, attributed to a director because it was in his folder.
As party-appointed expert, the examination checks whether the hash of the copy matches the one recorded during the raid. Then the metadata shows that the file was created on another computer and reached the director's folder through synchronisation of a shared cloud drive, with no recorded access by him.
The opinion does not discuss whether there was a cartel. It shows that the authorship attributed to the spreadsheet is not supported by the traces.
See also
Intellectual Property, Trade Secrets and Unfair Competition → Corporate Investigations and Compliance → Forensic Extraction from Mobile Phones and Devices → Judicial and Extrajudicial Expert Work → Public Procurement and Infrastructure → Practice Areas →