First, Wrestle the Gator in the Boat

Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2011-11-04 13:55:32  A sharp client recently said, “Let’s wrestle the alligator in the boat before we tackle the rest of them.” That pithy statement allowed the rest of his team to let go of the ancillary challenges that kept distracting everyone from the immediate goal that we were there to resolve. Face it, enterprise information governance or true discovery maturity is an unattainable goal. That does not mean that we should give up. Instead it means that we must strive to identify and prioritize the initiatives that we CAN attain so that we stay within the corporation’s idea of acceptable risk, cost and capabilities. There is no ‘one-size-fits-all’ definition of litigation readiness. For unregulated corporations with a minimal litigation profile, solid preservation and a proven mix of law firms and service providers may give them everything they need. Serial litigants may require a full litigation support department with processing, hosted review and production capabilities to control ESI and costs. You cannot create and implement enterprise wide systems in the blink of an eye, no matter what that vendor sales rep assured you over the second bottle of Zinfandel.

A maturity gap analysis is a great place to start. That is a fancy way of saying that you list your known pain points and hopefully get some outside perspective to help you see the issues that you have not acknowledged. I am not saying that you must hire expensive consultants (like my team), rather that it is very difficult to see the forest when you are standing in it. Go to conferences, participate in social networks and take advantage of every opportunity to talk with peers. Our work constantly touches confidential, privileged and trade secret ESI. Be careful and circumspect with your knowledge, but do not let that responsibility isolate you. No one can keep up with the constantly changing data sources, technology and case law in a vacuum. I created the eDJ Tech Matrix because I realized that I could not keep abreast without input from the discovery community and providers alike. So don’t be afraid to get outside perspective from a variety of sources, just keep your discussion away from specific matters. Talk about the process, not the particulars.As you build your list of gaps and goals, realistically assess the probability and potential cost of the not tackling them. The ‘reasonable effort’ standard is a constantly moving target. Right now, the bench seems to have focused sanctions on preservation and collection (search) diligence over processing and review errors. The market push for some kind of machine assisted review seems to be a leading indicator that relevance accuracy may attract attention from the bench soon, especially if predictive coding providers keep packing events with outspoken judicial speakers. If legal is driving your eDiscovery initiatives, then you will usually prioritize goals that minimize the greatest risk for the least effort/cost. On the other hand, IT information governance initiatives will prioritize the greatest business benefit or return on investment (ROI). Legal can leverage these retention, consolidation and business intelligence investments to address their gaps, but should recognize the ultimate business drivers that may take precedence. I like to think that legal can set risk requirements and has a strong veto on business driven initiatives with discovery impact (pretty much all of them).So know which alligators are already in the boat with you, which might jump in soon and keep an eye on the rest of them. Get your hands around your email and Office documents. Start looking at your policies on IM, voice and social media, but recognize that those may not be on fire yet. Define your corporate culture mandate for litigation readiness and information governance. Are your executives aware of the risks, challenges and competitive opportunities in being on the cutting edge? Is information governance a priority or something that your company will get around to after Microsoft says that it has a solution? We all want to do our best. Our profession seems to redefine ‘best’ every time I turn around. Don’t let that keep you from pushing your boundaries, just keep your goals in perspective and aligned with your real requirements.