Thinning Out the Hay
Proactive Information Governance and the Impact on Discovery
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.
Some companies have taken an aggressive approach, particularly with email, and delete all content after a certain period of time. This solution creates false hopes because the retention period isn’t tied to the business value of the information, which is traditionally done with other forms of content. This impacts business process and causes serious pain when you really need the information. And in the end, may not meet judicial expectations of managing information on a consistent basis—no matter what the format.
These scenarios are motivating today’s businesses to develop 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
Discovery may be the single scariest word to organizations today. Preparation is the best remedy to this fear. The challenge is to protect your organization from the unexpected. Interestingly, the new amendments to the 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. Having a data map is critical to being prepared for this conference. Unless an organization knows where all of its content resides, an efficient and effective response becomes challenging. It is also impossible to apply a legal hold if you can’t identify the content.
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." Of course this rule will not protect parties that intentionally destroy information because of its relevance to certain litigation. But it does respect the application of a retention management program. Applying retention rules consistently across the enterprise will reduce the amount of information to be identified and reviewed during the discovery process, i.e., thinning out the haystack. This allows solid information governance to be applied. Understanding this rule and its importance will help minimize the risk of the proverbial smoking gun.
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. By applying such principles, organizations can take back control of the discovery process and become more proactive in their planning for litigation response. 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.
It is clear that such an approach creates an environment that is prepared for action. Most organizations without a proactive and holistic approach respond to discovery with a heavy IT involvement, as well as paying law firms to acquire the skillsets necessary to process collections for production. Unfortunately, the only repeatable process in many cases has been the act of signing the check for legal services rendered.
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. By taking control, organizations become more aware of their information landscape, processes that can be streamlined through technology, and what can be maintained and repeated from one discovery to the next. It is simple. Knowledge is power.
An enterprisewide information governance strategy is critical to effective discovery preparedness. The benefits of a holistic governance approach 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. Again, thinning out haystacks ensures that when it is important to look for that needle, it is easier to find.
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.
So be prepared, eliminate unneeded content and educate users on the value of information governance.
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.