I recently attended the 57th annual ARMA conference in Chicago on September 23 – 25th. I have always had a soft spot in my heart for information governance because of the close relationship between eDiscovery and records management. They both seek to intelligently mine an organization’s data and put it into a meaningful structure. They also face similar challenges of overcoming the sheer massive volumes of information.
A big difference between the two is that records management is critical to an organization’s ability to manage their business through transactions, mergers, turnovers, and also dispute situations like litigation. Once litigation occurs, records managers are often included in the process to help figure out where the potentially responsive ESI resides. As a result, litigation is really a subset of the role of records management within a company. This is a topic I recently covered on an ESIBytes podcast called “Information Governance Tips Which Benefit E-Discovery,” with a collection of lawyers and technologists.
But despite all the similarities, there are differences between the two fields. It is almost like the recent studies I have read that point out that humans and apes share 96% of the same genes. As a result, we are similar to apes but we are not exactly the same. That is why there are bars separating us at the Zoo.
I found myself thinking about this while talking to a records management vendor at the trade show about how we are starting to use analytics in eDiscovery to find ESI for production and to develop case strategy and he mentioned they are working on similar challenges across the entire enterprise with auto classification tools. However when I asked if they wanted to discuss business opportunities or cross marketing at educational events, I got the sense that he thought I was the ape and he was the human form despite the similarities. There was effectively no desire to get into the messes and weeds of our world of eDiscovery beyond handing the data off to someone on the legal team.
Humor aside, there is real utility beyond sharing some bananas while looking at both fields in parallel to learn what works and what doesn’t. Consider that in litigation, we have an easier time getting budgets approved because of the risks and obligations which eDiscovery presents, where rules dictate a party’s obligation to manage ESI related to a particular matter. I know this to be true because over the years, outside of really large vendors, I have met more starving start up records management technology vendors than starving e-discovery vendors. I also know of companies who have gotten the approval for records management technology on the backs of a large case, only to find the integration stopped at the partial completion stage once the case settled. This could have been a success for records managers at the organization and to some extent it was a qualified success.
A records management function also has the challenge at its inception of finding a home within an organization being forced to work with business people, legal, and IT as sort of the organizing librarian in the middle. This tension becomes even more challenging when budget issues are discussed. I know of several records managers who had, what they thought, were better ideas for a litigation collection process but lost out to their legal department. Progressive companies see through these politics and make sure there is C level support to back records management in an appropriate manner.
One humorous aspect that might highlight the bruises from these challenges, which I noticed on the ARMA trade show, is there seemed to be more alcohol on the floor than at the eDiscovery conferences I normally attend. Perhaps this helps to dull the pain records managers’ face getting their solutions executed. If more lawyers knew this, I imagine the trade show attendance could increase dramatically. I for one was happy to see this.
While I didn’t get a chance to attend the educational sessions, I have been reading about some of the sessions online describing the use of advance analytics to find records more intelligently. This of course ties into the space I work in of predictive coding and using more analytics to find ESI. It shows another strong connection between the two. I also did notice and spoke to two eDiscovery technology vendors I know well who attended ARMA, for this same reason.
Some of the other connections between eDiscovery and records management that I have noticed last year when there was a push in Dallas in September during the mini conference to talk about amending the Federal Rules for E-Discovery about the crushing burden of over preservation. In particular, the Microsoft letter is often cited as a glaring example of what can go wrong because of over preservation with 340,000 pages of material collected and preserved for every page that makes its way into a case. Since that debate has started in the rule making committee, there has been a greater recognition that it is okay to destroy more ESI than be overwhelmed by storing everything. That is a form of records management and comes right out the last stages of the records life cycle.
Frankly records management is a lesson more lawyers could/should learn in order to make the task of finding ESI less daunting and expensive. Being more focused on what makes for potentially responsive ESI and where it resides instead of grabbing everything. This of course works better if the client follows good records management to begin with. The two go hand in hand so it is a good investment of time for legal professionals to visit ARMA and get more acquainted. Not only do we share the same genes, but we benefit from knowing better what we each offer. I highly recommend attending next year’s program to all eDiscovery experts who can make it out. You will be amazed at the parallels between the universes we live in and it might make you a better eDdiscovery professional as a result.
eDiscoveryJournal Contributor Karl Schieneman