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Legal Holds, eDiscovery and Good Information Governance

Despite the increasing frequency of litigation, too many organizations today are still unprepared for legal holds and eDiscovery requests. Often this is because they do not know what information they have, where it is located, how many duplicate copies may exist, who may have the information, or how to distinguish what is relevant from what is not. Additionally, employees asked to assist with these efforts often have little or no understanding of what is required, why it is important, or what steps to take.

This lack of preparedness leaves organizations in a reactive mode and unable to efficiently identify and collect relevant information in a timely manner. As the amount of information that such companies possess continues to grow, the time employees must devote to locating relevant information in response to legal holds and eDiscovery requests continues to increase, consuming resources that could otherwise be used to benefit the operations of the organization.

A recent industry survey* found that organizations who had implemented standardized and well-defined Information Governance (IG) rules, tools, and processes were significantly more satisfied with how efficiently their employees responded to legal holds and eDiscovery activities; they also felt their exposure to associated risks was much lower.

The survey went on to note that those organizations that depended solely on informal or non-standardized approaches were usually dissatisfied with the time and effort devoted to responding to discovery requests. They felt that their current methods put them at risk and wanted to make improvements.

Even 9 years after 2006, when changes were last adopted to the Federal Rules of Civil Procedure to provide standards and guidance for pre-litigation preparation in managing the proliferation of electronic information, organizations still grapple with implementing standardized approaches to preserving, collecting and analyzing electronic data in response to eDiscovery demands. Because organizations continue to struggle with this, and many lack formalized processes for legal holds and eDiscovery collection, production and preservation, the steps that they take continue to be challenged in court.

If yours is an organization that’s searching for a better way to respond to litigation, start by taking a long, hard look at how information is being received, managed, stored and disposed of after its useful life. That is what Information Governance is – a programmatic approach to managing information, minimizing the risk associated with litigation and poor information management, and protecting its value as a key business asset, including its security and privacy.

Standardized IG requirements and processes are a combination of documented rules and associated tools (i.e., technology, forms, websites) that have been developed to meet an organization’s compliance and operational needs, have been deployed to those who will use them, and have been implemented using change management techniques to improve the likelihood that employees know what they should do and why it’s important. The rules and tools are written, published, are clearly communicated to employees, and are made easily accessible for future reference. Change management recognizes that, just because something is documented, those written requirements are not necessarily put into action. Employees need training and ongoing support to reinforce key messages.

Good IG is good business, regardless of your industry:

• Knowing what you have, where it is, and how long to keep it means that resources are devoted only to information that has value, and not wasted on anything else,
• Documenting IG requirements and training employees on how to meet those requirements results in a workforce that understands the value of compliance and knows what to do, and
• Implementing IG rules and processes, as well as using change management techniques, reduces the time and expense of responding to litigation when it does occur.

Organizations that fail to implement IG programs, whether through inaction or conscious choice, may risk significant, costly, and sometimes fatal consequences when they cannot respond appropriately to regulators, to the courts, to auditors or to market expectations. The cost of implementing an IG program is only a fraction of the cost of most litigation eDiscovery efforts and results in less costly and more effective eDiscovery responses into the future.

Standardized rules and processes are at the core of Information Governance

IG requires a collective view from many different perspectives including Records & Information Management (RIM), Information Technology (IT), Legal/Compliance, and Risk Management. Each of these disciplines needs to be involved in developing and implementing your IG program.Making improvements does not require a large upfront investment. Organizations can get started with only modest investments, but sustaining change requires that the organization approach IG as an ongoing Program, not as a short-term project.Some of the ways in which standardized rules, tools, and processes can make legal holds and eDiscovery easier and more effective include:

• Documented policies and procedures that Clarify an organization’s requirements and expectations for managing information throughout its lifecycle, including in preparation for litigation.
  Inform employees that the organization owns the information and has the responsibility/accountability to establish standardized rules and processes for its management as an information asset.
• Ongoing education of employees – not simply a one-time training class, but including periodic refreshers – about all aspects of IG, why they are an important part of the organization’s success, and how information should be managed; this minimizes confusion and encourages a culture of compliance.
• Knowledgeable, well-trained workers respond more quickly and thoroughly to legal holds and eDiscovery requests.
• Attorneys who understand what types of information exist, how information is organized, and the rules being applied to it can review and analyze eDiscovery requests more quickly and initiate search and collection efforts that are more narrowly focused to match the specific parameters of the case.
• Administering legal holds can be systematized, thus spending less time on manual follow-up, periodic reminders, and consolidating data for reporting.
• IG rules, policies, procedures, etc. enable the application of rules in electronic systems. There are many eDiscovery and legal hold software solutions on the market today. However, all of them rely on having a standard path for your legal hold and collection activities. Without the rules, the technology adds no value.
• Knowing where information is, and what is in each location facilitates targeted search strategies and reduces overall search time.
• Having an up-to-date retention schedule, and applying it systematically and consistently to information, regardless of format, means there is less volume to search.
• Incorporating governance rules for retention, hold, release and disposition, as well as for security and privacy, into enterprise technology tools makes automating those rules easier; fewer resources are needed to apply those rules.The tools and processes used for applying legal holds and performing eDiscovery should be one component of a larger strategy for managing information for the benefit of your organization:

  

  Kaizen Can Help Build the Information Governance Program Your Organization Needs

  Our professional focus is on helping organizations to build practical and workable Information Governance programs that meet requirements and can be sustained by enterprise resources and improves legal hold and eDiscovery processes. For further information or help with your program, please give us a call.

   

  Legal Hold and Data Preservation Benchmark Survey – 2015 Results, August 2015, Commentary by Brad Harris, Survey Conducted by The Steinberg Group LLC, © Zapproved, Inc.

   

  Copyright Kaizen InfoSource LLC 2015 4 2280 Pulgas Avenue, Suite 100, Palo Alto, CA 94303 (805) 231-3026