Migrated from eDJGroupInc.com. Author: Gary Wiener. Published: 2015-07-12 20:00:00Format, images and links may no longer function correctly.
Information governance (IG) is one of those things that every company talks about, most companies know they should do, but very few actually follow through with. IG, quite simply, is records retention and destruction, both of those tasks occurring according to an established protocol and schedule, and preferably with a minimum of subjective human interaction. And, of course, you can’t govern your information if you don’t know where all of it is, so IG presumes that the enterprise has control of its data as well.
The term “eDiscovery” has come to mean collection, culling, review and production of electronically-stored information for litigation purposes – but that’s a very loose definition. Without an IG plan in place and functional, in case of a lawsuit, potentially every shred of ESI within the enterprise would have to be located and reviewed. This is foolish when one considers that the cost of such eDiscovery would be wildly disproportionate to the amount in controversy in most litigation; and is even more foolish when one realizes that most of this expense can be avoided if an IG plan is in place and functional.
The overwhelming majority of courts do not care what your IG plan is, or how long you retain specific types of ESI documents. They only care that you apply your IG plan consistently and systematically; if those two criteria are met, the plan is typically considered defensible. “Systematically” in this context means that no person is making a subjective “keep/don’t keep” determination; either the document is due to be disposed under the IG plan, or it is not. That means, if your IG plan deletes a “smoking gun” email the day before your enterprise is sued, and that email would have been discoverable had it not been deleted, most courts will not punish you for failing to produce that email – as long as the IG plan has been applied consistently and systematically.
If your IG plan is in place and working, you need only suspend the systematic deletion of ESI from the time your enterprise was on notice of the lawsuit (the “knew or should have known” test). You can then collect, cull, review and produce the ESI documents in your possession, without a need to go back and restore your disaster recovery archives (which, most courts agree, should be reserved for disaster recovery and not for anti-spoliation purposes). If, on the other hand, your enterprise has no functional IG plan – which must already be in use consistently and systematically – then you will have to filter through everything you’ve got, and may just have to go back to those disaster recovery archives if the “smoking gun” documents aren’t at hand.
One method is extremely efficient and keeps litigation costs down. The other is ridiculously expensive and tactically dangerous. If your goal is to be a hero to your enterprise … which option would YOU champion?
eDJ Independent Contributor: Gary Wiener
Gary Wiener, Esq. is a published eDiscovery author, speaker and subject matter expert. Gary is a licensed attorney, with nearly eight years’ experience as a trial attorney in Austin and Houston. Previously, Gary was Lead eDiscovery Instructor at Hewlett-Packard (formerly Autonomy), in which he not only managed HP’s entire training portfolio for eDiscovery software, but also provided strategic expertise and marketing support for software developers and enterprise clients. Gary received his J.D. and Journalism degrees from the University of Texas at Austin.
Blog perspectives are personal opinions and should not be interpreted as a professional judgment. Blog content is neither approved nor reviewed by any providers prior to being posted. Do you want to share your own perspective? eDJ Group is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. eDJ Group is not responsible for the content of outside contributors and all such blogs will clearly indicate the author, company and any relevant affiliations.