Information Management:
Critical To Proactive Discovery

Your organization has just received a complaint filed in federal court. Relevant information needs to be identified and preserved. The clock has started ticking—what do you do? Whether the information request comes in the form of formal discovery, a request for information from a government agency or the need to identify information relevant to a pending internal investigation, the steps you have taken to manage your information before such a request materializes will have a direct impact on your ability to respond.

Today, information is being generated at such a rapid pace that the typical reactive approach to discovery no longer makes sense. As courts and practitioners have struggled to interpret the practical application of the revised Federal Rules of Civil Procedure, the challenges of handling these issues have highlighted the need for a different, more efficient approach to the discovery process. This has become even more apparent given today’s economic climate and the need to reduce costs and promote efficiencies. If thoughtfully evaluated and implemented, a proactive information management strategy can greatly improve preparedness and increase an organization’s cost savings during the discovery process.

For many organizations, responding to discovery or requests for information has been something of a fire drill. The typical response was a shotgun approach where information was over-preserved and then provided to outside counsel for review. While this approach may have worked when the scope of the information requested was narrow or the amount of potentially relevant information was small, in today’s world of electronically stored information, these practices do not scale. The reactive approach is time-consuming and expensive, and it diverts resources (both human and financial) from other critical functions within the business.

The Benefit of Being Proactive
While initiating an information management process may seem daunting, the benefits it can provide downstream in the e-discovery process far outweigh the burdens it may create in its initial stages. At the outset, an e-discovery response plan should begin by contemplating how information is created and managed. By understanding how its users are creating and storing information, an organization can truly evaluate its risk and implement a discovery process to address and minimize these risks.

Information management: Information management is relevant to all layers of an organization. No matter what a person’s job function entails, it is imperative that end users are able to access the information they need to do their jobs. However, retaining too much information can overwhelm an organization’s systems and increase risk in the event of litigation or regulatory scrutiny. As a fundamental matter, the organization needs to evaluate its requirements—both from a business perspective and with respect to any legal and regulatory requirements that may be applicable. Once requirements have been identified, the organization can develop retention policies around those requirements. Generally speaking, the process of determining appropriate retention policies will require the input of business unit leaders, the IT team as well as stakeholders from legal and records management.

Implementing technology, such as an archiving tool, can provide the foundation to support an organization’s information management policies by providing greater control over the information being created and retained. Once retention policies have been established, these policies can be applied within the archive to enable an automated and repeatable expiration process.

Centralized identification/preservation/collection: One of the most significant challenges an organization faces in its discovery process is the ability to quickly identify information that may be relevant to a pending matter and the ability to preserve and collect that information. Often, the costs associated with identifying and preserving data can be extraordinarily high from both a monetary and a human resources standpoint.

Legal hold: An organization must make a good faith and reasonable effort to preserve information that may be relevant to a legal or regulatory matter once litigation is reasonably anticipated. Unstructured data and data dispersed across multiple locations makes it extremely difficult to determine what is relevant. In addition, securing relevant information from normal destruction practices can test an organization’s ability to identify which systems and processes may be affected. Often, the only way an organization could reasonably determine what information might be relevant to any given matter was to rely on information provided by individual custodians. While this approach is often necessary to identify categories of relevant information, relying solely on individual custodians to segregate, preserve and collect relevant information can create additional risk for an organization that does not have the ability to track and control this process.

One way to address this issue is to consider an archiving tool. Using an archiving tool, information across the organization is stored in one centralized location. This information can then be accessed and searched by a designated user with the appropriate permissions. This approach provides greater consistency in the discovery process and potentially relieves the burden and distraction to the individual custodians of having to go out and search their environments. The organization is able to implement a legal hold on this information from a centralized location, as opposed to asking individual custodians to preserve data or otherwise copy and move it to another location. In addition, archived information is essentially pre-collected and pre-indexed, thereby reducing the time and cost related to early identification and assessment.