Image of one hundred bill burning “If your clients don’t have a records management system, they may as well take their money out into the parking lot and set it on fire.”

– Former U.S. District Court Magistrate Judge John Facciola

We all know that ediscovery is expensive, and various research reports have so confirmed. The definitive Rand study, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, found that median costs for collection, processing, and review are $17,507 per gigabyte (roughly 3,500 documents or 10,000 e-mails).  The math is not pretty – a case involving 482 GBs of source data could exceed $8 million in ediscovery costs.

And on top of that are preservation costs. The  Preservation Costs Survey demonstrated that large companies incur significant fixed costs for preservation (for in-house ediscovery personnel and also for procurement and maintenance of legal hold management and data preservation technology systems), averaging $2.5 million annually.  More significant is the cost of employee time lost in complying with legal holds.  While companies with up to 10,000 employees incur the average time cost of over $428,000 per year, costs for the largest companies exceed $38 million per year.

There is indeed great complexity in how to cost-effectively process huge amounts of data through the ediscovery funnel. Tighter management of ediscovery processes continues to be important.

But as we ponder how to cut costs, let’s not confuse symptoms with causes: Continue Reading Why govern our information? Reason #12: Unnecessary business data causes unnecessary litigation costs

Fried egg on the sidewalk
“This is your information, ungoverned.”

2017 was rife with data dangers.  Nary a day passed without headlines of massive data breaches and ransomware attacks; Russian election-meddling through WikiLeaks and social media; fake news; and presidential tweet-storms.  Disruptive information-driven technologies continued to emerge, from block-chain to biometrics, IoT, AI, and robotics.  Meanwhile, the sheer volume of our personal and business data inexorably grew.

What better way to start 2018 than with a renewed commitment to Information Governance?  So, here are a dozen reasons why your organization should govern its information, in 2018 and beyond:  Continue Reading 12 reasons to govern your information in 2018

Charging ElephantOur firm’s elephant icon is a nod to The Blind Men and the Elephant, the familiar, age-old parable for how we often do not see the big picture, but instead only the parts we directly encounter. And so it goes for organizations’ data. Individual company functions and departments often have their own, limited perspectives on information, seeing only the risks and opportunities with which they are directly familiar. Limited perspective yields limited perception – not a good thing for identifying, understanding, and controlling organizational risk.

I actually prefer a slightly different version, The Blind Elephants and the Man:

One day, six blind elephants were in a heated argument about what Man was like. To resolve their dispute, they sought out and found a man. The first elephant “felt” the man and then proclaimed “Man is flat.” Each of the other elephants, in turn, felt the man, and they all agreed.

The moral? Limited perspective not only yields limited perception – it can also lead to very bad results.

“Information Governance” has become an overused buzz-phrase, often trotted out as marketing mumbo-jumbo for selling technology tools.  In all the hype one can easily lose track of what it really means.  At its heart, Information Governance is no more – and no less – than making sure the organization sees the big picture of information compliance, cost, risk, and opportunity when making strategic decisions. Continue Reading Why govern your information? Reason #2: Your information risks and opportunities arise from a single source – your data. Your response strategies should be synchronized too.

Weird SportIt’s a common nightmare.  As you toss and turn in bed, you picture yourself on a strange playing field with other athletes swirling around you.  You have absolutely no idea what sport you are playing, nor a clue what the rules are.  it’s not only embarrassing – it’s downright dangerous.

This is not just a bad dream – it’s reality for companies possessing third-party data without clarity on what rules and responsibilities apply. Continue Reading Why govern your information? Reason #3: “Your” information may belong to others … and you’re responsible to take care of it.

Manually digging a holeLate last month in Mirmina v. Genpact, the Honorable Sarah Merriam of the United States District Court for the District of Connecticut properly confirmed that it remains permissible to manually preserve and collect discoverable email.  Her opinion was concise and spot-on, swatting away the plaintiff-movant’s speculative “concern” that defendant must have “withheld communications” that were responsive to the case’s discovery protocols.  Citing Zubulake V, Magistrate Judge Merriam accepted defendant’s detailed affirmation that in-house counsel appropriately coordinated and supervised the manual search for reponsive email by defendant’s ESI custodians, and she therefore denied plaintiff’s motion to compel.

The ediscovery blogosphere lit up once the Mirmina ruling was handed down – see here, here, here, here, here, and on and on.

What’s remarkable about this ruling is that a singularly unremarkable point has somehow become remarkable. Continue Reading Breaking news from Captain Obvious – it’s still OK to manually preserve and collect ESI

clouds and lightningIf you’re old enough, you’ll remember a time when businesses actually kept their own information (cue my adult children to roll their eyes).  How quaint.  We no longer keep most of our information – providers do that for us.  We store our data in the cloud, through cloud providers.  We outsource business applications to SaaS providers, and even entire systems as PaaS.  And we increasingly use service providers to handle key aspects of our business that we used operate internally, resulting in a robust flow of data out of our businesses to such providers, and also the providers generating, receiving, and retaining huge data troves on our behalf.

But we’re still accountable for our information in others’ hands:

  • Litigation – the scope of permissible discovery, and of the preservation duty, extends not only to data in our possession or custody, but also to data within our control.       
  • Data security – we’re generally responsible for data breaches suffered by our service providers.  Under most breach notification laws, including HIPAA and state breach notification statutes, our service providers must notify us of data breaches, but we are still responsible for providing notice to affected individuals and regulators.  Regardless, in the wake of a service provider data breach, we’re in the hot seat.
  • Business Continuity – if we need to promply restore data due to ransomware or other causes of business interruption, it doesn’t matter who’s the custodian – all that matters at that moment is timely and effective restoration.
  • Retention – third parties retaining information longer (or shorter) than our retention schedule cause us to be at best inconsistent and out of compliance with our information management policies.  At worst?  See Litigation, Data Security, and Business Continuity above.

Our litigation preservation duties do not vanish for information hosted elsewhere but still in our control; our data security obligations do not evaporate when we house protected data with a service provider; our imperatives of data integrity and accessibility have no exceptions based merely on data storage location; and our records retention and destruction rules do not disappear if our data is hosted remotely. In other words, we still need to govern information compliance and risk for our data in other’s custody.

And this is a perfect example of the value of Information Governance. A key benefit of the IG perspective is that it enables organizations to take useful strategies from one established discipline and apply them more broadly. The importance of service provider controls is well-established in the data security discipline. For example: Continue Reading Why govern your information? Reason #4: Your information is in others’ custody … but you’re still responsible for it.

Twenty percent solutionOK, IT mavens, listen up…how much better would your life be if you only had to manage and protect 20% of your company’s data? By eliminating 80% of your data you could free up oodles of storage, reduce licensing costs, shorten backup cycles, and drastically cut e-discovery preservation costs, not to mention go home on time for a change.  For most this is an unrealistic pipe dream, but it doesn’t need to be.  The trick is knowing which 20% to manage.

Continue Reading The 20% solution for information management and security

Monster Ant“What if ants were as big as dinosaurs?”  I remember asking my kids that question, forever ago when they were young.  Maybe the thought came from reruns of old monster movies, like the 1954 classic Them! (pictured here).  Anyway, it was a cool game, for as the ant’s size multiplies, the laws of math, physics, and biology play their part:

  • The ant’s exoskeleton wouldn’t be strong enough to support the increased weight, so an internal skeleton is needed.
  • Gravity would play havoc with the ant’s open circulatory system, so a closed system is crucial.
  • The ant’s energy needs would soar, and so a different diet and digestive system are required.
  • The ant’s newfound size would totally alter its place in the food chain (The Lion King, “Circle of Life,” right?), driving fundamental changes in behaviors and capabilities.
  • And on, and on.

Until, we finally end up with an ant the size of a dinosaur … that looks a lot like a dinosaur.

But what’s this have to do with Information Governance?

Continue Reading Ants, Dinosaurs, and Information Governance

3d blue cubes come together from different directions. Dr. Stephen Covey reminded us that “important” is not the same thing as “urgent.”  Records retention reminds us that important is not the same thing as exciting.  I get it – records retention schedules are boring.  But the fact remains that literally thousands of records retention requirements apply to your organization’s information.  I know, because my firm finds and tracks these laws as part of our many years of retention schedule work for clients across industries.  And your regulators expect you to know them too.

Continue Reading Why govern your information? Reason #11: Thousands of federal and state records retention laws apply to your company

Image of one hundred bill burning on black background“If your clients don’t have a records management system, they may as well take their money out into the parking lot and set it on fire.”

– U.S. District Court Magistrate Judge John Facciola (now retired, and missed)

We all know that ediscovery is expensive, and various research reports have so confirmed. The 2012 Rand study, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, found that median costs for collection, processing, and review are $17,507 per gigabyte (roughly 3,500 documents or 10,000 e-mails).  The math is not pretty – a case involving 482 GBs of source data could exceed $8 million in ediscovery costs.

And on top of that are preservation costs. The 2014 Preservation Costs Survey demonstrated that large companies incur significant fixed costs for preservation (for in-house ediscovery personnel and also for procurement and maintenance of legal hold management and data preservation technology systems), averaging $2.5 million annually.  More significant is the cost of employee time lost in complying with legal holds.  While companies with up to 10,000 employees incur the average time cost of over $428,000 per year, costs for the largest companies exceed $38 million per year.

There is indeed great complexity in how to cost-effectively process huge amounts of data through the ediscovery funnel. Tighter management of ediscovery processes is important, and TAR continues to be a promising alternative to traditional review, with significant cost-savings potential.

But as we ponder how to cut costs, let’s not forget to use Occam’s razor: Continue Reading Why govern your information? Reason #12: Unnecessary business data causes unnecessary litigation costs