eDiscovery: The Transparency Police?

Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-04-01 11:14:45  Transparency – it’s a word we hear often now.  Merriam-Webster defines the term transparent as being “free from pretense or deceit,” “easily detected or seen through,” or “readily understood.”  The Obama Administration talks about transparency and government; about how government should be accountable and able to share information about its operations with the public.  The FRCP Amendments aim to hold organizations accountable for transparency, for being able to share information when required.  And, we at eDiscoveryJournal aim to enforce transparency within an industry shrouded in complexity (and peppered with non-standardized terms and phrases).If one thing is clear in the information management world, it’s that transparency is every organization’s responsibility.  And eDiscovery is the driver for transparency.  I think back to inquiries I had with clients years ago and I roll my eyes.  Clients would ask, “ how can make sure that no one finds potentially incriminating evidence?”  Or they would say, “I don’t want to make eDiscovery easier because then I might actually have to produce information I don’t want there.”  I’ve referred to this line of thinking as ostrich behavior.  At the end of the day, eDiscovery is like transparency police.  Because organizations know they have to manage and potentially produce all digital information, employees should be incented to act ethically and within the boundaries of the law.  Any organization that fails to do so is mostly likely admitting bad behavior.While eDiscovery mandates a certainly level of transparency, proactive managing information to ease eDiscovery (as part of a larger information governance initiative) can also help to protect information that is “private” or “confidential” or “secret.”  What good information governance cannot do is protect organizations from revealing fraudulent behavior.  Let’s go back to the example of the client that didn’t want eDiscovery tools because it didn’t want to make finding information easy (rather, the organization wanted to be able to argue that the information wasn’t accessible).  Wouldn’t that organization be better off finding incriminating evidence early and being able to make the decision to settle (and therefore avoid further legal costs)?What needs to happen is a change in human behavior.  Too many people believe that electronic evidence cannot come back to haunt them.  Without making a moral judgment on Tiger Woods or Jesse James, I do wonder what level of ignorance it took for them to allow text messages and emails to exist as proof of their affairs.  There seems to be a similar wave of ignorance amongst corporate executives.  Anyone remember the bond traders who publicly extolled the virtues of what they were selling and then emailed each other about how the bonds were junk?  Do these people honestly believe they won’t get caught?Human behavior only changes when the right incentives are in place.  More organizations need to police the usage of digital media (e.g. Facebook, Twitter) by employees and organizations need written policies with real punishments when the policies aren’t followed.  Employees, meanwhile, need to learn to use corporate email for work purposes only.  And, if they are to engage in bad behavior, at least don’t put evidence of it in digital format or it will be found.  I do think that the strides we make in eDiscovery today will act as a kind of transparency police in the future, forcing people to be accountable for the information they put into digital form.