retention & defensible disposal

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Destroyed CDs - shredded by a shredder.It lingers on – that vaguely guilty feeling that there’s something sanctionable, even illegal, about routinely destroying business data.  That’s nonsense.  It is well-settled United States law that a company may indeed dispose of business data, if done in good faith, pursuant to a properly established, legally valid data retention schedule, and in the absence of an applicable litigation preservation duty.

Even the courts themselves dispose of their data.  Federal courts are required by U.S. law to follow a retention schedule approved by NARA, and to ultimately destroy records or transfer them to the Federal Records Center, as directed by that retention schedule.

Here are but a few of the many case decisions on this point:
Continue Reading Why govern our information? Reason #6: It’s OK to destroy business data. Really.

Endless book tunnel in Prague libraryAs the information tide relentlessly rises, many organizations simply see an IT problem, to be fixed with a purely IT solution – more storage capacity, more tools, or both.  But merely adding more storage is a reaction, not a strategy.  And adding technology tools without the right governance rules invariably makes things worse, not better.

This is not a criticism of your IT team.  Instead, the problem lies in a misunderstanding of the fundamental challenge.  Just as you shouldn’t bring a knife to a gun fight, you shouldn’t merely bring more storage capacity and IT tools-without-rules to your fight to regain control over your organization’s information.  What’s needed is governance.

More Storage is Not the Answer

If the accelerating, worldwide growth of data were a throw-back movie, it would star Vin Diesel – Fast & Furious.  It’s hard to wrap one’s head around the magnitude and velocity.  Try this – for context, the total content of all catalogued books in the Library of Congress has been estimated variously at 10 to 15 terabytes of data.  IDC’s Data Age 2025 study pegged the world’s 2018 data volume at 33 zetabytes (33 billion terabytes), and forecasted that data volume will reach 175 zetabytes by 2025, a more than quadruple increase.  In case your head hasn’t exploded … apparently 1,000 zetabytes is a yottabyte, and as of yet there is no officially recognized International System of Units name for 1,000 of those (I propose “Lottabyte”).

Why the dizzying growth?  Internet use is certainly a contributor (a lot can happen there each minute).  But it is the Internet of Things, combined with the Industrial Internet, that will increasingly generate gobsmacking quantities of device and machine data.

Let’s hone in on the reality faced by individual organizations. Unstructured data (documents, spreadsheets, presentations, audio and video files, email, and the like) can comprise 80% to 90% of total enterprise data.  Unstructured data is often largely uncontrolled, scattered across network drives, user’s computers, and the organization’s electronic content management (ECM), collaboration, and e-communication systems.

Veritas’ Data Genomics Project produced an interesting 2016 study that analyzed tens of billions of unstructured data files, with over 8000 file extensions, at Fortune 500 companies.  Key finding?  Storage capacity grows each year, but so does data volume – 39% annual growth in the number of unstructured data files, year over year.  Just as a bigger closet or garage at home results in the accumulation of more stuff, when businesses add larger on-premise or cloud repositories without governance controls, it inevitably leads to larger data volumes.  More storage simply enables more data hoarding.

Tools Without Rules are No Help Either

Continue Reading Why govern our information? Reason #7: Merely adding more storage and more tools won’t solve your data problems

One Bullet in Gun BarrelHaving too much data causes problems beyond needless storage costs, workplace inefficiencies, and uncontrolled litigation expenses.  Keeping data without a legal or business reason also exacerbates data security exposures.  To put it bluntly, businesses that tolerate troves of unnecessary data are playing cybersecurity roulette … with even larger caliber ammunition.

Surprisingly few U.S. data security laws and standards expressly require that protected data be compliantly disposed of once legal and business-driven retention periods expire.   PCI DSS v3.2.1, Requirement 3.1, provides “[k]eep cardholder data storage to a minimum by implementing data retention and disposal policies ….”  HIPAA regulations  mandate that business associate agreements require service providers, upon contract termination, to return or destroy all PHI received or created on the covered entity’s behalf, if feasible.  Alabama and Colorado require that records containing state-level PII be disposed of when such records are no longer needed.  And biometric data privacy laws in Illinois, Texas, and Washington generally require that biometric data be disposed of once it has served its authorized purpose.

Instead, most such laws and standards focus on securely sanitizing or destroying storage media.  For example, the NIST Cybersecurity Framework v. 1.1 includes as a security control (PR.IP-6) that “[d]ata is destroyed according to policy,” and ISO 27002 (§ 8.3.2) provides that “[m]edia should be disposed of securely when no longer required, using formal procedures.”

But data security is not achieved by simply running through a checklist of explicit compliance requirements – it instead requires assessing risks and establishing effective security controls.  And one of the most powerful security controls is to not keep too much data, for too long.
Continue Reading Why govern our information? Reason #9: Unnecessary business data multiplies data security exposures

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 decades of retention schedule work for clients across industries.  And your regulators expect you to know them too.

Records retention requirements generally apply to information’s content, regardless of the information’s medium – electronic data, paper, you name it.  The requirements are scattered across the federal and 50 states’ statutory and regulatory codes, often with unusual retention mandates.  Here are just a few:
Continue Reading Why govern our information? Reason #11: Thousands of federal and state records retention laws apply to your company

Fingerprint biometric dataIn today’s landmark ruling, the Illinois Supreme Court held that private lawsuits seeking statutory damages and injunctions for violation of the Illinois Biometric Information Privacy Act (BIPA) may be pursued by “aggrieved” persons without alleging any actual injury or adverse effect.

BIPA, enacted in Illinois back in 2008, was the seminal state statutory privacy…

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

Empty SafeLast week’s post explored why law firms need data security policies.  Before we move on, I’d be remiss if I didn’t mention another policy that’s absolutely crucial for the law firm’s data security posture – a records management policy, coupled with an up-to-date and legally validated records retention schedule.

What does a records retention schedule have to do with data security?  Simply this – keeping data without a legal or business reason exacerbates data security exposures.

Breached systems frequently contain many times more data than was needed for retention compliance or any valid business or operational purpose.  This unnecessary data multiplies the number of those whose confidential or protected information is compromised, and can also have exponential impact once breached, passing a tipping point on lasting reputational damage or on the economic viability of claims against the firm.

It’s not possible for a breach to compromise the security of information that no longer exists, having already been compliantly disposed of once its legally required retention and business value have expired.

But surely most every law firm has a records retention schedule in place for its records of client matters and firm administration, right?  Actually, far too few firms do.
Continue Reading Law firm data retention – they can’t hack what you no longer have

Security dial turned to highest settingHow time flies.  Seventeen years ago, I went to work for a small, visionary company based in Seattle—Computer Forensics, Inc.   Indeed, the founder was so early in the e-discovery and forensics industry that our URL was forensics.com.  Laptop drives typically had 8 GB of storage, and servers were more often than not simply a bigger box that sat in a closet.

Lots has changed since then.  New technologies, expanded data sources and media types, and more raw data have flooded consumer and business marketplaces alike.  We’ve all seen the scary statistics on increasing information volumes and the security risks that follow.  Unfortunately, our controls for the creation, management, retention, and disposition of those data have not kept pace.  Yet how we manage our data on a day-to-day basis goes also to the heart of how we protect our data and ensure that our information assets are secure from theft or compromise.

During my years at CFI and since, I’ve found myself pondering “what if?” questions.  What if we only had to protect 20% of our information?  What if clients could take dollars earmarked for e-discovery and increased storage and spend them instead on better systems and operational improvements?  What if a client faced with the reality of a data breach didn’t have to wonder how many unnecessary skeletons were now visible?  The promise of information governance is that we can answer these questions affirmatively.  This is good news, and more importantly, news you can use.
Continue Reading Information governance – the foundation for information security

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.