Migrated from eDJGroupInc.com. Author: Kevin Esposito. Published: 2011-03-30 16:18:47Format, images and links may no longer function correctly. One of the first instructions that IT practitioners will hear from the legal department is “preserve everything”.  It doesn’t matter what the context is or whether the information may or may not be relevant, at the first pass a lawyer will always tell you to preserve everything in sight.  The problem with preserving information is that preservation is only half the battle – you need to be able to make use of it somewhere down the line and that’s a fact that sometimes gets lost in the shouting.

We often run into conflicts created by the identification and retention of data when working between the Legal and IT departments at client locations.  Lawyers will be looking for the widest possible retention policies and practices.  They do not realize that overly broad retention efforts may have a negative impact on the daily operations within IT.  On the other hand, many lawyers just don’t care if that does happen. They have gone to multiple eDiscovery conferences where it has been drilled into them that if they allow their IT people free reign, the data will be deleted, the case will be compromised, their hair will fall out and their yearly bonus will go “poof” (again). Consequently, their only response to every matter will be to invoke their best James Earl Jones impression and intone “Keep EVERYTHING”.

IT people, on the other hand, are convinced that lawyers exaggerate everything.  If you listen to the lawyers, the sky is always falling.  You’re always “betting the farm” or engaged in some other similar process that is intended to let you know that Armageddon Is Here (again).  IT feels that those dudes in Legal are just too highly strung.  After all, every time they see a lawyer come running into the IT department, he has his tie and collar open, is red faced, puffing from running too far and trying his damndest to wheeze out that feeble Darth Vader impression.  It’s really sad, especially since the lawyer should know that IT people spend their off hours in multiplayer online games dispatching Evil Overlords just for kicks. For them, neutralizing one pudgy lawyer is a snap.

Thus begins the first phase of the “keep everything” battle.

Experience has shown that there’s a larger question that just what to keep. When we’re working with a new client we usually meet the “keep everything” edict with the question, “Let’s say we’ve preserved everything – what are you going to do with it?”  Quite often, no thought has been given to what will happen to data or how it will be used.

What both sides fail to take into consideration is that if you don’t plan from the outset just how the data will be examined down the road, there’s no guarantee that your wonderfully preserved data will be actually be usable.  Rather than being able to mine for informational diamonds later on, you might find that your data is frozen in amber.  The problem lies in the compartmentalization of roles and responses.  In most cases, each group involved has ticked the box that covers their responsibility.  The Lawyers have issued their retention edict and the IT folks have complied, so everyone feels comfortable until the first time a discovery request comes in from the other side and data extraction is required.  It is then that you find that the data is in a weird format, the custodians have been intermingled and it’s time to check Monster and Lawjobs for an exit strategy.

We used to see this back in the old datacenter days.  Someone would call the help desk and say “Application X is down”.  All of the support teams would be called in.  Communications would enter keyboard commands and confirm that the telephone lines were up and then step back.  Then DB2 would do the same and say the database was running.  Then the hardware people would confirm that the servers were running and eventually everyone would cheerfully validate their small piece of the puzzle and stand back with their hands up in an “all clear” gesture as though they were mechanics changing tires on a NASCAR racer. There was only one problem – the system wasn’t working – which is why someone called in the first place.  It was up to the datacenter manager to take the holistic view and help drive the issue to resolution.

It’s the same process with the cross functional issues that come up for discovery support: each of the groups look at a small part of the overall requirements, pronounces their work done and stand back content that they’ve done what they need to.  The problem with discovery as an interdisciplinary process is that there’s rarely someone looking at the big picture and you wind up with fragmented retention and support.

From there, we move into the second phase of the keep everything battle.  Rather than experiencing collaboration, it is more likely that there will be an “all or nothing” demand from one side to the other in an attempt to force showing some level of response to outside observers.  If IT appears to be pushing back at any level, Legal will feel the need to ratchet down and ask for more and more assurances that preservation is indeed ongoing, usually in writing.  If a request to Legal for a reduction in preservation volume goes unheeded, the IT people will invoke the equivalent of a rule book slowdown and chuckle maniacally as the servers slowly grind to a halt.  Shared server space begins to fill up, email inboxes begin to max out and Sharepoint collaboration gets a lot more pointing than sharing. Before you know it, complaints from the business people are deftly turned aside by the IT folks by saying “we’re following Legal’s instructions”.  As business people begin to report that they can no longer get their work done and new requests for increased disc space come flooding in, the finance people begin to weigh in on the situation and everyone is made universally miserable.

This is a scenario that has played out time after time in organizations large and small.  If you’re lucky, you’ll just limp along until you’re out of the legal woods.  If you’re not lucky, you’ll learn the meaning of Benjamin Franklin’s admonition that “if we don’t hang together we will assuredly hang separately”.  If you’re desperate, you just might call in an outside consultant and ask them to make peace between the internal factions and find a way to make the preservation process worthy of its time and expense.

In the next post, we’ll begin to examine just how you might start to do that.

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