Though it is one of corporate legal’s hottest topics, it’s no secret that information governance, or IG, isn’t universally understood. Still, e-discovery plays well with IG, and both fields make a compelling argument for why it’s important to organize your data. So what should inside counsel know about information governance right now? Start by understanding the top challenges of three core IG areas—adoption, its relationship with e-discovery, and compliance—and you’ll be well on your way to tidier data.
The State of IG: Adopting and Getting Started
Information governance may be a hot topic, but many organizations are still figuring out how to organize and manage their growing data. Since IG is still emerging in terms of the formalization of the movement, organizations may not consider it a top priority—or just haven’t had the time and resources to put a policy in place, knowing that even after a policy is defined, it takes ongoing work to ensure it’s successful.
The truth is that companies get stung by high e-discovery bills. It makes them question if they should allocate any more of their budget to prevent that in the future with an investment in information governance projects, and too often that follow-up work doesn’t happen. It’s put on a to-do list but no one gets around to it or their budget is too limited. Unless it’s prioritized, companies will continue to encounter struggles when e-discovery for litigation occurs. Often, prioritization and buy-in for formalizing and implementing a proper IG plan requires the input of some of the higher-level decision makers in the company to affect global change.
The first thing they have to realize is that perfect information governance is an ideal that is extremely difficult to achieve. Just because you create a policy, it doesn’t mean that employees are actually going to follow it. You need to determine how the policy will, from a practical perspective, be implemented within the company and achieve success. An overcomplicated policy stops far short of that, and may doom the IG plan for failure.
At Seyfarth, we’ve been creating training videos that—along with the policies we develop—our clients can use to train their employees so they understand the importance of keeping their documents organized. This resource, offered through Seyfarth at Work, is an enormous resource for clients to assist them in properly training employees on how to follow the policy in a practical, smart, and efficient way. The remaining problem is how to enforce it, especially when some people are disorganized by nature and will resist using a well-structured document management system, naming conventions, and metadata tagging.
An Early e-Discovery Lesson to Learn from IG
Too much unstructured data in too many places affects everyone, and a significant part of information governance is deciding what to govern, when, and how. That means e-discovery professionals have a lot to learn—and gain—from IG. To start with, it’s important to know that there is a vast majority of data on computers that you don’t typically need to retain—for business purposes or e-discovery responses. The IG principle of being decisive about data immediately translates to an important issue for case teams: collecting and culling.
It’s important to collect intelligently and figure out how you’re going to preserve data long before the actual collection takes place. You don’t want find yourself in a situation where you’ve unwisely over-preserved data and are forced to spend a lot of money culling it downstream just to prepare for review. While there is nothing wrong with preserving broadly, and as a rule that is typically a risk-averse approach to preservation, companies should seek to implement technical limitations through Group Policy enforcement within their corporate computers to limit the areas of the hard drives where employees can save data. With this, you could easily ensure that employees are technically restricted from saving data outside their “My Documents” or user profile folder. Knowing that, you can approach your preservation in a calculated, defensible manner that is focused and limited, rather than overbroad.
Further, you can set up workflows that allow for early identification of the target data and collect it to build that decisiveness into e-discovery. For example, you can preview drives with Relativity Collection to get an early indication of what a custodian may have on their computer. Consider doing this in an interview to get context in real time. Then, when you decide what to collect, you have a defensible process to determine which folders likely contain relevant information for the discovery request.
Again, you’re not over-collecting, not over-culling, not over-searching, not over-reviewing, and not over-producing. Those savings should trickle down all the way through review and production.
Even with the best policy and the most qualified team behind it, IG isn’t going to be perfect—that’s just the name of the game, at least in the next half decade.
You’ll always have the human element of organization. People are going to be in a rush when they’re working and just save files on their desktop, or in their documents, or the root of the C drive, or USB drives. Then there it will sit and may never be properly filed because the employee moves on to another job. That’s just the natural flow of some employee work. The real challenge is addressing that pain point. You want to help people work quickly and efficiently, and sometimes they see data retention policies and procedures as a pain that will just slow them down.
We recently pivoted our software at Seyfarth. Feedback of the initial system showed that some employees perceived that it took too long to provide the right metadata information to categorize data. We had to adjust the process and make it simpler. We set up a “matter-centric” approach that integrates our data management system directly within Outlook, so folks around the firm were familiar with the structure and default case type folder. That’s just one small example of a myriad of IG practices we have implemented to be more effective and easier on our employees.
Still, realistically, the maturity model in the near future might follow the 80/20 rule—roughly 80 percent of people may comply consistently and 20 percent won’t. Or, worse, it could be reversed. When you deal with e-discovery, you have to take that into account, too: you may have a great central repository where everything should be, but know that you will find data residing somewhere else, too.
The true test is developing a multi-year maturity plan to implement IG policies and procedures that will help your organization deal with the eventual threat of litigation, develop strong business data management efficiencies, and reduce data loss through disorganization.
Richard D. Lutkus is a partner at Seyfarth Shaw’s San Francisco office, focusing his practice on information governance issues and e-discovery.
Ready to take the reins of information governance in your organization and start organizing data? Check out this webinar for tips on how to get started.