Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-05-21 07:30:09Format, images and links may no longer function correctly. There is a great article from Christy Burke of Burke & Company about the eDiscovery disaster that could arise from the BP oil spill.  Christy’s article is detailed and comprehensive – a must-read for anyone wondering about the eDiscovery implications for the broader market and how to plan for some of those issues.   From an information governance perspective, there are some quick takeaways I’d like to list (because this is yet another example of how proactive planning could avert the potential eDiscovery nightmares that can arise from extreme situations like this one):

  • This is an example of preservation duties kicking in before a lawsuit is filed.  In my mind, the legal hold process should kick in within hours of the BP realizing that an incident occurred.  This also shines the light on how important it is to pre-plan for legal hold.  When an incident occurs, an organization should aspire to be able to go into one system, set up the legal hold, and feel confident that most sources of information will be automatically preserved.
  • Managing eDiscovery across country lines and into hard-to-reach locations (like oil rigs) will be the expectation.  I’m not trying to say that BP specifically needs to get it 100% in this situation, but now that this incident has occurred, the next global enterprise that faces a similar situation will have a hard time arguing that information is not accessible.
  • Proactive planning is more important than ever.  Organizations that don’t know where information lives, how it is accessed and stored at dispersed locations, or have the ability to quickly preserve it when necessary will be at a real disadvantage when it comes to eDiscovery.  There will always be a need for consulting expertise and forensic experts when it comes to collecting from certain sources, but it’s not a bad goal to shoot for an 80/20 rule – 80% of information can be automatically preserved and collected when needed.
  • Related to proactive planning is the need for reasonable retention policies and marriage of those policies with processes like backup tape recycling.  Reasonable retention policies allow organizations to get rid of information that is no longer useful and would otherwise muddle eDiscovery down the  road.  But, if retention policies exist and aren’t married with backup tape recycling schedules, there is a good possibility that the organization will need to conduct discovery on those backup tapes anyway.  So, in order to keep costs down, start getting rid of information that isn’t needed and make sure it’s gone across all data sources.

The eDiscovery lessons from this incident will be much clearer in a few months as we begin to see what kind of eDiscovery activity actually plays out.  Hopefully, the news will be of the positive variety, as opposed to stories of nightmare collection efforts and inability to preserve information in a timely and reasonable manner.

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