Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2017-01-19 19:00:00Format, images and links may no longer function correctly.
Going all the way back to Arthur Andersen/Enron, the cover-up is always worse than the original crime. Serious déjà vu as I read, How VW’s In-House Lawyers Screwed Up a Litigation Hold. In VW’s case, counsel ‘leaked’ word of the impending legal hold to key custodians who scrambled to delete thousands of documents and even instructed an emissions related subcontractor to purge documents. All of this came to light when regulators started their inevitable interviews with key employees. I don’t know if you have ever been in the mythical hot seat as a witness or potential suspect of a criminal investigation. During my admittedly short years stint as a CSI, I enjoyed watching investigators and defense attorney’s crank up the heat, even when it was my turn. That heat hit BROIL during the Enron investigations and subsequent litigation. Watching those bad actors fold taught me that company loyalty only goes so far. I was lucky that my bosses at El Paso Corp took the high road thru those dark times. As the newly minted discovery manager, I had to find and turn over all the bad apples asap and sign off on the completeness of document demands. So once again we see corporate malfeasance transformed to criminal indictments when the guilty parties try to hide the evidence. So how do we cut off the instinctive cover-up reflex?
Cover-ups are initiated by those who have participated in them, i.e. execs, managers and counsel running the business. Your compliance and preservation process should be insulated from those active business managers. That means not dumping legal holds on the same counsel who supported the business unit and contracts in the first place. Most of today’s corporate counsel are critical for business success. But their very involvement and inside knowledge has the potential to create bias and the temptation to game the system. Healthy eDiscovery/compliance systems have conscious checks and balances designed into them to prevent abuse. Beyond legal hold notification and deliberate record purges, there is the remarkable access rights required in discovery to perform vital collections and preservation searches. Do you really want your legal hold manager checking their salary against others? Because I assure you that global HR spreadsheet is in every set of custodial search results. My bottom line is trust your people, but construct your eDiscovery lifecycle to minimize the temptations and abuse.
Stay skeptical my friends!
Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients. His active research topics include analytics, mobile device discovery, the discovery impact of the cloud, Microsoft’s Office 365/2013 eDiscovery Center and multi-matter discovery. Recent consulting engagements include managing preservation during enterprise migrations, legacy tape eliminations, retention enablement and many more.
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