Proactive Information Governance and the Impact on Discovery
With the highly litigious nature of business, regulatory challenges and the resulting era of risk management, the most successful and agile organizations are those that proactively manage their information, applications and policies that drive their business. The key word is "proactive."
Until you know what content you have and where it is, you can’t effectively apply corporate policy to reduce it appropriately. Reducing your "stale" or outdated content reaps huge rewards, not the least of which is reducing the single largest cost of the discovery process...the cost of review.
The first step to achieve enterprise content control—and an imperative one—is to form a task force to develop an overall information governance strategy that includes your discovery preparedness plan. Representatives from IT, legal, records management and compliance should all be present, and support from executive management such as the CEO and board of directors is paramount. The task force will help drive technology decisions around records management, email archiving and discovery, but most importantly, will create best practices, policies and procedures to be followed by all employees.
Today’s combination of ever-growing volumes of decentralized information and the necessity to adhere to complex regulations (and potential litigation) pose a unique dilemma. More and more disparate haystacks of information are being created with little governance. Whether they are being created by imaging systems, document management systems or email archiving systems, they can pose serious risk to the organization if left ungoverned.
Businesses should be developing plans to maintain and carefully manage the retention and disposition of their corporate information to help mitigate risk. The volume of content is increasing and the real question should be: what’s its useful life and how long should we keep it?
The New Federal Rules
The new amendments to the Federal Rules of Civil Procedure (FRCP) fit quite nicely in an information governance strategy. Taking a proactive stance helps to create repeatable processes that allow organizations to respond in a confident and legally defensible manner. The underlying message of the amended FRCP is that organizations should be managing their information and should have written, carefully thought-out data retention and destruction policies and procedures.
Under Amended Rule 26(f), parties must meet and confer on both the disclosure of electronically stored information and agree to the form in which it will be produced. Taking that information and keeping track of it in a written or graphical format—often referred to as data mapping—is one of the hot topics in discovery. Unless an organization knows where all of its content resides, an efficient and effective response becomes challenging.
Amended Rule 37(f) adds a safe harbor provision: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."
The consistent management, retention and disposition of information assets, as legally appropriate prior to a litigation event, will make discovery much simpler and less costly when it occurs. Those organizations that fully understand their information landscape, and are proactively managing it, are better prepared to meet the underlying requirements of the amended FRCP.
With a holistic information governance and proactive approach, organizations’ legal departments develop key skills in the discovery arena that typically get outsourced to outside counsel. As organizations gain more control over discovery, the overall disruption felt by the business and expansive costs, both hard and soft, are minimized.
An enterprisewide information governance strategy is critical to effective discovery preparedness. The benefits are clear; an organization that links proactive records and retention management with its discovery preparedness will be more efficient, better able to enforce policies across the company and save time and money by storing and searching through less information when it needs to identify, collect, review and produce information.
Organizations should look for a solution that offers a unified management view into that information while respecting the repository choices previously made by functional areas. This streamlines not only day-to-day information sharing and decision-making, but effective and efficient discovery response that minimizes costs and the impact on IT.
CA is one of the world’s largest IT management software providers, delivering software and expertise to unify and simplify complex IT environments in a secure way across the enterprise for greater business results. CA Information Governance provides records management, email management, file management and discovery solutions to help clients proactively reduce risk, improve information governance and respond effectively to e-discovery and audits—with minimal disruption to the business, lowering cost, improving returns and promoting business agility. www.ca.com/ig