Edges Moving Toward the Center
Records and Archiving Join the Information Management Table
Johannes thinks many companies have over-complicated archiving and records management. "For a company up to about a thousand employees, it’s pretty simple to create archives, to define a few retention rules and to implement a simple, straightforward email archiving system," he insists. "You just have to assign some competent people to keep an eye on it, and make sure—maybe only once a year—that data is actually being destroyed and that people are using the archives properly." He says that providing an organized information management scheme—even a rudimentary one—will attract users to it (unlike the archaic, burdensome ones described by Sean). "If people see the benefits in using the archives, they will continue to use them. Most of us don’t need Department of Defense-level archives. You just need to follow a policy of creating directories for all documents related to, say, ‘customer quotes’ or ‘contracts.’ Then every year, move everything into a single archive directory. After seven years, just delete that directory. Whether you do it automated or manually once a year doesn’t matter; but you need to have the policy in place first."
How do you go about creating this policy, I ask. "First, think about which documents you couldn’t live without if your company went up in a fire. Now, where are those documents? What directories are they stored in? And how much duplication do you have? Once you figure that out, THEN you can start automating. But you have to start with a file plan. And a simple file plan is fine for most companies."
As Goldilocks will tell you, there’s a balance between "too much, too little and just right." "There is a sweet spot," says Sean. "Keeping everything forever will bankrupt you, whether through storage costs or discovery costs. But getting rid of everything makes employees unhappy, and can cause other problems such as implementing legal holds. You want to find a middle ground," he continues. "There’s value attached to information. You wouldn’t keep it if it didn’t help you do your job. Employees want to know what the competition knows, or what your opponent in the courtroom might be looking at. But there’s a diminishing return as it grows."
Who’s in charge of deciding the relevance of a particular document? "The legal department should make the decision whether the custodians of data should self-collect it and move it into a single location, or whether to use automation to go get it," answers Sean. "We actually see people moving more toward that second option."
Johannes, of course, also advocates the application of technology, but thinks that the most sensible path is to take care of documents and (especially) email at their source. "You can buy an e-discovery solution, and continue doing e-discovery the rest of your life. Or, you start cleaning up the document stream where it is originated."
A little house cleaning, he thinks, can go a long way. "Email is a great example: after implementing email archiving, we see email reduced by 70% to 80%. Plus there’s so much duplication of things like PowerPoint presentations, quotes, technical documentation..." says Johannes. "Most email is irrelevant anyway; it’s chit-chat, confirming appointments, etc. If you were to really think about each email, and whether it’s relevant, you’d end up destroying most of it right away. I always joke that if you have an emotional blockage to deleting data (and many people do), just let your hard drive crash. You’ll find out most of it wasn’t that important."
Sean agrees: "Email is the most sought-after type of information now involved in legal cases. 77% of the time, email comes up as a key component. So if you can get email under control, you’ve solved your biggest problem."
What Do We Do?
What’s the best advice going forward?
Sean: "First, legal hold is your biggest risk today. If you can’t implement a legal hold, that’s where problems are going to come from. Just keep in mind that everything in the courts is about good faith; if you can show the investigator that you had a good-faith policy, and you have been faithfully executing it over the period covered by the legal hold, then the FRCP rules have a provision called ‘safe harbor.’ You’ll be OK. It’s murky, but that is exactly the intention of that provision," says Sean.
"Remember, though, the FRCP doesn’t compel you to do ANYTHING...until you’re in court, then the rules begin to apply," he laughs.
Johannes: "There’s a corollary to Moore’s Law: The cost of e-discovery is doubling every 18 months, too." The more you can do to fix the problem at the beginning, the less it will cost at the end of the pipeline," he says.
It stands to reason that we are all sort of floundering about in this environment. "We are now only about 20 years—one generation—since the real beginning of electronically created information," reminds Johannes. "It takes a generation to get used to a technology. We are now just beginning to understand how to deal with electronic information."
Please read on in the following pages, and see if we can’t nudge that level of understanding up a notch or two.