Thinning Out the Hay
Proactive Information Governance and the Impact on Discovery

I’m sure organizations collectively would all like to take a moment to thank the countless unnamed individuals that worked endless hours re-writing the Federal Rules of Civil Procedure (FRCP). Just when you thought the Sarbanes-Oxley fears were coming under control, thankfully there is something to replace that angst. The whole point of the update was to make the rules simpler and easier to understand. So how did this "simpler, gentler" version become so challenging and expensive to prepare for? For one, it pointed out the obvious: Organizations should know where their content is.

On December 1, 2007, the one-year anniversary of the new FRCP came and went without much fanfare. If you missed its mention in the newspaper it may be because you were distracted with a headline about some poor company not meeting its requirements. Or more likely, a headline about a smoking gun email. It’s clear that organizations are still struggling to understand and execute on actions they need to take in order to comply. Since all organizations are subject to litigation, not having a response plan in place can be quite costly, as the courts clearly expect organizations to be prepared. Preparedness for the meet-and-confer conferences and producing responsive documents on time is critical, as tardiness is not tolerated in federal courts. The frequent results of non-compliance are large fines as well as extensive business disruption.

As we’ve recently seen in the case of Qualcomm, enterprise information governance policies would have mitigated considerable risk. Be it the appearance of holding back electronic evidence, the lack of knowledge as to where documents may be located, internal miscommunication or newness to the process, all can have adverse effect on the outcome of the litigation. Ignorance is not bliss in a court of law.

Getting to that corporate nirvana where the CIO or general counsel can confidently say "we are prepared to respond to any litigation effectively, efficiently and at the lowest cost" is a process that cannot, unfortunately, be achieved overnight. However, you can take the first step of this journey today. It is important to understand that if this journey is to be successful, it will involve both human and technological investments.

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." The ability to truly protect the organization is based on this premise: "Take a proactive approach to what is typically a reactive process." Quite frankly, if you are one of the few well-prepared organizations, you are most likely a leader in your market and more profitable than your competitors. These are demonstrable affects of solid information governance.

Until you know what content you have and where it is, you can’t effectively apply corporate policy to reduce it appropriately. And as we all know, it’s not the document under management that will get you in trouble; it’s the one you don’t know about. 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. In simple terms, "it’s a whole lot easier (and cheaper) to find the needle, if there is less hay!"

Fail To Plan = Plan To Fail: Forming a Task Force
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. The team should spearhead training and organizational awareness programs for the staff that will promote proactive and consistent management of information assets and enforce an understanding of the importance of policies and established procedures across the organization.

Given this, a key element to the plan is an enterprise retention management program, the foundation of which is retention policies to apply against all corporate content. This program should be built to address all content, not just documents deemed as "official records." The information governance strategy produced by the task force will become the enforcer of consistent policy application on all content across the enterprise.

Growth and Decentralizing of Information
When formulating a discovery preparedness strategy, organizations must consider and accept the fact that electronically stored information (ESI) is growing at an explosive rate. Knowledge workers are generating content at a faster rate than we’ve ever known and have an increasingly addictive reliance on email—the most used and most risk-laden communication tool today. This overload causes discovery to become even more burdensome. I don’t know of a single analyst report indicating the growth of business content will slow. In fact, not only is the volume increasing, but the rate of growth is increasing as well.

Not so long ago, content growth was seen as strictly an IT storage issue. The "keep everything" mentality was prevalent. Storage costs were decreasing, so adding storage devices seemed somewhat acceptable. From a discovery standpoint, these unmanaged storage silos soon became risks to the organization and their content dangerous in a court of law.