The continued expansion of electronic data combined with the blurring of lines between business and personal information is straining already stretched legal departments. Like any worthwhile endeavor a stable base is needed upon which to set your foundation.
For years document review has been synonymous with electronic discovery. This stage of the litigation life cycle is quite often the most expensive and the significance of that spend to the end result of the litigation cannot be denied. It is for this reason that so much attention has been paid to technological and process advancements in recent years to better effectuate the speed and accuracy of the review. The actual review of documents however, takes place relatively late in the discovery process.
Even more so than anything that technology or process can accomplish during the culling or review phase, the fundamental building block of electronic discovery is found in effective and practical information governance policies.
Laying the Groundwork For Your Information Governance Policy
Information governance allows for balancing the legal obligation for retaining specific information with the value of that information. Some of the goals of information management include: reducing the cost of ESI, limiting liability, and increasing process efficiency.
Corporations are not in the business of information governance so it is important for the model to compliment and reinforce the entity’s business strategy.
Manage and Organize ESI with a Data Map
It is vital for a corporation to know exactly what information is generated and stored in the ordinary course of running the business. An ESI data map is one effective technique for providing a complete identification of electronically stored information. A data map is a comprehensive and defensible inventory of a corporation’s IT systems that store information, which may be relevant to litigation and other proceedings. The map serves the purpose of identifying the potential sources of ESI, the location of those sources, the retention, purging, and deletion policies for the ESI, who manages those sources, and details about the scope of ESI available from the sources.
A data map serves a valid business purpose in addition to the traditional use for assisting with ESI identification for litigation. A comprehensive map allows relevant stakeholders to determine whether ESI is being retained for a length of time appropriate to maximize its business use while limiting the amount of information subject to potential litigation holds. If all ESI is stored indefinitely, the cost of storage will escalate exponentially but of much greater concern is the potential ramifications if archival data is subjected to an overly broad litigation hold. By analyzing the data map, a legitimate cost-benefit analysis can be made to determine how long each category of information is relevant for the business and the retention timeline can be adjusted.
Fundamental Role of Information Governance Policies in eDiscovery Workflows
How Retention Policies Support an Efficient eDiscovery Process
Courts are not interested in parties maintaining data forever and are increasingly applying a rule of proportionality. They recognize that it is not feasible for a corporation to retain all information indefinitely and have found that deletion of ESI is acceptable so long as the deletion is defensible and corresponds to a defined document retention policy, and the information is not currently subject to a litigation hold.
There are several steps leading up to the review that are of paramount importance and can have a significant impact on the course and cost of litigation; even more so than anything that technology or process can accomplish during the culling or review phase.
If information is deleted in accordance with a defensible retention policy, then spoliation will not arise. What courts are interested in is an effective and efficient discovery process.
Reduce the Burdens and Risks of Data Collection
In Salamone v. Carter’s Retail, Inc. the defendant retailer filed a motion for protective order to stave off the collection of thousands of personnel files. Carter’s argued that proportionality precluded the search and review of the personnel files given the sheer volume. Carter’s asserted that the nature, format, location and organization of the records made their review and production too burdensome. Carter’s alleged it would have to review 130,000 pages of documents spread out across multiple offices and storage sites. The storage of said files were lacking uniform records management procedures.
In denying the motion, the court singled out the retailer’s own information retention system as the cause of the claimed disproportionate discovery burden. That the retailer, the court reasoned, “maintains personnel files in several locations without any uniform organizational method” does not excuse them from production. In this instance the court concluded that the value of the requested information significantly outweighed the resulting burden and expense on the retailer.
If the records at issue had been digitized and maintained in a central archive, the retailer’s collection burdens would have been significantly minimized. Furthermore, integrating these “upstream” data retention protocols with “downstream” eDiscovery processes could have expedited the review process.
A stable foundation comprised of a memorialized set of comprehensive information governance polices supported by effective technology and staff will likely help organizations realize the benefits of proportionality, enhance the data available to the business, and become a key component in the implementation a repeatable and defensible eDiscovery process.