Becoming Litigation Ready Through Proactive Information - AIIM

14 Pages·2008·0.15 MB·English

WHITE PAPER:EDISCOVERY AND LITIGATION READINESS
Becoming Litigation Ready
Through Proactive
Information Governance
OCTOBER 2008
Peter Pepiton II
CA INFORMATION GOVERNANCE SOLUTIONS
Table of Contents
Executive Summary SECTION 4: CONCLUSIONS 10
Taking a Proactive Approach
SECTION 1: CHALLENGE 2
ACase for Increased Preparedness
SECTION 5: REFERENCES 11
Managing More Than “Just Technology”
Keeping Everything: An Outdated Practice SECTION 6: ABOUT THE AUTHOR 11
Updated Guidelines Drive Technology and
Process Improvements
Trends Point to the Need for Solid Discovery
Processes
Identifying Pain Points
AFew Ways to Assess Litigation Preparedness
SECTION 2: OPPORTUNITY 6
Creating an Effective eDiscovery Program
Mitigating Risk and Increasing Litigation
Preparedness
Critical Capabilities for EffectiveeDiscovery
Key Tactics for Increasing Preparedness
SECTION 3: BENEFITS 8
Achieve Greater Benefits With a
Comprehensive Information Governance
Strategy That Includes eDiscovery
eDiscovery and Records Management
Capabilities Go Hand in Hand
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Executive Summary
Challenge
The process of discovery presents an enormous set of challenges for organizations today. It
is costly, disruptive and unpredictable and often forces them to respond to each matter in
an ad-hoc manner driven largely by outside counsel and eDiscovery vendors. And with
information growth rates soaring, stricter requirements for management and control
increase the pressure. Compounding this already complex situation is the fact that
organizations are scrambling to comply with, and prepare for, the updated Federal Rules of
Civil Procedure (FRCP) — even years after their enactment — to mitigate the various risks
highlighted in many recent court cases. This scenario points to the urgent need for a
comprehensive information governance solution that includes eDiscovery capabilities.
Opportunity
Companies can increase their litigation preparednessand reduce risk with an information
governance solution that integrates the management of all content — whether in email
systems or on paper, disparate content systems, network servers, laptops, voice recordings
or elsewhere. This will provide immediate access to content regardless of location or
format and enable a straightforward and consistent legal-hold process. Centralized policy
enforcement for all information-based applications across the enterprise minimizes risks,
increases productivityand contains costs.
Benefits
The right eDiscovery solution can help businesses increase productivity, reduce costs and
take a proactive posture toward enterprise-wide compliance, which can also improve their
ability to transform the typically reactive processes of eDiscovery, eDisclosure, information
requests and audit. Additional benefits include the ability to:
• Respond quickly and efficiently to eDiscovery requests at a lower cost
• Remove users from the content preservation process and streamline the legal-hold practice
• Effectively manage, control and discover information assets to support business
objectives, meet obligations and instill confidence
• Minimize organizational risk to the organization
• Reduce storage costs by eliminating stale content and the overall amount of content
under management
• Respond with equal efficiency to eDisclosures, audits and Freedom of Information requests
WHITE PAPER: EDISCOVERY AND LITIGATION READINESS 1
SECTION 1: CHALLENGE
A Case for Increased Preparedness
Today’s CIOs, CCOs, COOs, corporate counsels and IT directors are accountable for a host of
daunting responsibilities related to the management of corporate information. They must
minimize risk exposure, cut costs, improve performance and increase business agility while
maximizing existing technology investments. And, the task list continues to grow. For example,
the information management landscape is more difficult than ever to navigate because of the
updated Federal Rules of Civil Procedure (FRCP). These rules provide guidelines about how
organizations must respond to eDiscovery requests for Electronically Stored Information (ESI).
Managing More Than “Just Technology”
Beyond the challenge of litigation preparedness, organizations are finding that the standard
methods of managing information may not be enough. In fact, they are facing legal, regulatory
and compliance pressures that demand that information overload is addressed proactively to
directly meet business objectives head on. And at the same time, they must implement
appropriate safeguards and measures to protect sensitive information and minimize risk
through effective and transparent mechanisms that ensure compliance. This has lead
companies to widen their efforts, expand their strategies and seek a more holistic solution.
This new path, which helps increase control over information, is more accurately referred to as
Information Governance.
Information Governance is a new approach that represents a shift in the way information is
managed. It moves beyond a focus on information repositories, what those repositories can
functionally accomplish and their surrounding infrastructures to an overarching strategy of a
policy authority. The result is an enterprise governance program guided by a best-practice-
based policy,rather than any limitations dictated by a repository or technology. A solid
information governance program provides accurate, consistent information controls that
deliver the right information at the right time to make the fact-based decisions that drive the
business and help keep it competitive.
Keeping Everything: An Outdated Practice
Some organizations still believethat retaining all records is a safe approach. But the truth is,
keeping outdated content is often costly to store, and can actually prove to be a liability.
Alternatively, developing a solid retention schedule safeguards content that should be
maintained while providing a defensible strategy for disposition of content. It also minimizes
the risk associated with the inability to produce information that should legitimately be
on hand, but removes unneeded content that could negatively impact productivity and add
undue risk.
Simply put, information assets cannot be indiscriminately destroyed. It is no longer a defensible
position to respond to a request by saying information is unavailable, erased or that it has been
inadvertently deleted or shredded. As many companies have realized, the updated FRCP
presents an intricate set of guidelines that makes compliance a daunting challenge. An
underlying tone of the FRCP and a simple rule to follow, however, is that organizations need to
know what they have and where it is stored. Unfortunately, when it comes to this level of
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knowledge and preparedness — even this long after the updated FRCP has been in effect —
many corporations still fall short. Few have the right technology partner to effectively manage
alegal discovery process involving electronic and/or physical documents. And it is clear from
reviewing recent lawsuits that many companies still lack a formal records policy that
incorporates all content formats.
Because the amount of information that must undergo review is often great, it is important to
establish a reasonable production timeline for the completion of a discovery process. This
should be addressed, or at least considered, during the “meet-and-confer-process.” By
prioritizing, organizations can deal with more relevant information first while leaving the less
critical information for later review. However, records must be appropriately categorized and
easily accessible in order to achieve this objective.
The time has come for organizations to take a careful inventory of their information landscape,
technologies and business processes to see how they stack up. The option to wait and see —
or assume that existing policies are adequate, is not a prudent path. In fact, many enterprises
that have chosen to take this “approach” are currently in litigation, receiving audit notices or
Freedom of Information requests — or will be soon. Therefore, the time to ensure preparedness
is now.
Updated Guidelines Drive Technology and Process Improvements
Today’s changing information landscape affects all staff levels within the organization and
charges each department with unique responsibilities in the event of litigation or audit. Now,
with growing evidence that increased legal, regulatory and business obligations require
management and process improvement, organizations are exploring ways to update systems
for increased preparednessand reduced risk.
The decentralized management of information is an area that deserves careful examination.
Although information in most organizations is stored in a decentralized manner within
individual silos, the systems used to ensure litigation preparedness really need to enable a
360-degree viewof enterprise content. The business should be able to effectively manage,
control and discover its information easily and effectively. Having efficient and total access to
records and non-records ensures solid Information Governance, increased productivity and
compliance with legal, regulatory and business requirements. Appropriate solutions will allow
enterprise content to be stored “in place” in the repository of origin to minimize disruption.
They should also facilitate the production of requested information, whether electronic,
physical (on paper) or managed by an off-site vendor, within a reasonable timeframe and
without incurring exorbitant costs.
Leaving little room for debate as to whether a proactive strategy for litigation preparedness is
needed, manybelievetherearejust two types of companies: those who have been sued and
those that will be sued. But, understanding the potential risks of violating eDiscovery rules is
the first step. In addition to derailed careers, steep monetary fines and damaged reputations,
companies can be slapped with other undesirable sanctions. For example, negative rulings
can be made that can exclude evidence that may have helped win a lawsuit. What’s more, a
judgecan decide to allow jurors to infer missing information as negative to the case. And in
extreme situations, the inability to produce information could bring a default judgment for lack
of performance.
WHITE PAPER: EDISCOVERY AND LITIGATION READINESS 3
Trends Point to the Need for Solid Discovery Processes
Many recent news stories have documented corporate missteps during litigation. It is no
surprise then that an April 2008 Gartner report ranks litigation readiness as the third major
trend of 2008. Litigation readiness encompasses everything from legacy tape destruction
(under legal and controlled conditions) to conducting thorough electronic information
inventories and data mapping. It also includes instituting legal-hold processes for preservation
that are repeatable and consistent throughout the enterprise. And while litigation readiness
is top of mind for many corporate executives, these challenges — and the implementations
that address them — can be overwhelming.
The report also noted, "The biggest problem that end-user organizations face today is the
sheer volume of data that they have stored."1Harnessing information overload is an important
step towards improving eDiscovery processes. And, while outsourcing this critical task to
litigation services firms may be commonplace, developing an effective in-house system as part
of an Information Governance initiative can minimize the need to outsource for collection, as
well as reduce the volumes of information that need to be reviewed. This approach provides
greater control, shorter response times and reduces costs.
Identifying Pain Points
Because some discovery requests are so extensive, all information must be easily accessible
and entirely open to view. Supporting this point, a 2007 Forrester Research report stated that,
“In an eDiscovery action, an organization needs to find information no matter where it lives.
At times, the discovery action will be confined to email, and in such a case, eDiscovery can be
conducted directly within a message archive. Often, though, eDiscovery must extend to other
managed and unmanaged repositories…”2
Industry changes over the past several years have proven that the rising costs of document
collection and review demand a major realignment of how business information is maintained
and controlled. Pain points, such as the following, exist in many areas of business operations.
LEVEL OF RISK EXPOSURE
Risk mitigation is the leading factor driving many organizations to purchase technology. Some
information management initiatives have been planned for years, but minimizing risk is driving
purchase decisions and forcing organizations to consider their overall governance strategies in
amore holistic, policy-driven manner.
AMOUNT OF INFORMATION UNDER MANAGEMENT
Effective eDiscovery requires companies to identify, collect, analyze and process millions of
electronic and physical records for the purposes of audit and legal discovery. But, having a
glut of stale and out-of-control information under management can leave organizations
unnecessarily exposed and vulnerable tozealous “fishing expeditions” and unwelcome fines
and sanctions.
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PROTECTING VITAL INFORMATION
It is crucial that vital information assets are both authentic and appropriately protected to
mitigate risk, particularly in light of litigation, regulatory compliance, privacy and data loss.
In order to eliminate security gaps, organizations should review, then strengthen, if necessary,
the following areas:
• Content authenticity: Ensure that content is authentic to meet the demands of client,
business, regulatory and legal requirements.
• Rights management: Ensure user and group rights to information are granted based on
business needs.
• Ethical wall security: Review and confirm “need to know” policies and information access
for compliance, regulatory, legislative and business requirements.
• Hierarchical security: Review and confirm the need for security classifications and
hierarchies (typically used in government).
• Retention management: Ensurethat chain of custody can be preserved and that information
is maintained according to business policy and based on compliance, legal and business
requirements.
• Disaster recovery and business continuity: Streamline disaster recovery and business
continuity processes through easy identification of vital business records.
RESPONSIVENESSSHORTFALLS
The inability to respond in a timely manner to requests for evidentiary information — whether
for litigation, audit or an information request — can lead to fines, punishments and damaged
reputation. Shortfalls in this area can forcecompanies to settle out of court by choosing the
less expensive route of non response. But, it is important to note that settlement costs —
while ensuring resolution — can quickly exceed the price of an effective eDiscovery solution.
AFew Ways to Assess Litigation Preparedness
Companies can better assess their level of preparedness, and as a result risk exposure, in the
area of eDiscovery by considering these questions, among others:
• Do we, at a high level, know what information the organization has, where it is stored and
what applications are used to manage it?
• Do we have retention policies? Are they published to all staff and updated regularly with
input from department leaders? Are they applied consistently across the enterprise to
effectively meet business needs, eliminate stale content and enable efficient discovery
processes?
• What role should each information gatekeeper play (CIO, CCO, corporate counsel, IT
directors and their teams, legal and compliance professionals, records managers and end
users)if the organization is threatened with a lawsuit or audit?
• Haveweadopted standardized policies and IT practices for activities related to the
identification, preservation and collection of potentially responsive information?
• Which ad-hoc and/or manual business processes exist that could present potential
challenges or risks to our legal-hold practices? Are any of our practices repeatable?
1 1Key Issues for an Electronic Discovery Project, 2008aGartner Group report, April 2008
2 “E-Discovery Compliance Growing Increasingly Difficult” by Melanie Rodier, August 17, 2007 Source:
http://www.wallstreetandtech.com/features/showArticle.jhtml?articleID=201800879
WHITE PAPER: EDISCOVERY AND LITIGATION READINESS 5
SECTION 2: OPPORTUNITY
Creating an Effective eDiscovery Program
Taking steps to increase litigation preparedness can result in an overall Information Governance
strategy that enables the centralized management and control of enterprise-wide content
regardless of format or location. Through information governance, enterprises can take control
of their information, reduce eDiscovery costs and minimize the content that must be processed
or reviewed by high-priced consultants and professional services firms.
When executed properly, eDiscovery systems can provide capabilities critical to litigation,
disclosures or audit. By proactively preparing to respond to requests for information, business
disruption is reduced, enabling IT and end users to continue with their normal business
activities. The ability to respond in a controlled, efficient manner also decreases the time,
money, resources and opportunity cost of the search in a discovery request or audit. What’s
more, creating repeatable and predictable processes provides organizations with more control
over processes and costs, and increases confidence.
Mitigating Risk and Increasing Litigation Preparedness
With risk mitigation a leading concern in corporations today, deploying an Information
Governance solution addresses eDiscovery requirements and helps provide additional benefits
through increased productivity, efficiency and business agility. Another step a company can
taketo lower risk and improve litigation preparedness is to minimize the amount of stale
content within information storage and content environments. Email, content repositories and
file systems can be kept lean through the use of effective and consistent retention policies
based on legal and business requirements.
According to Forrester Research, companies that pursue the following three key objectives can
increase their ability to execute a successful eDiscovery investigation:
• Build and use systems to reduce information volumes
• Improve efficiency for legal professionals
• Maintain chain of custody and avoid spoliation
BUILD AND USE SYSTEMS TO REDUCE INFORMATION VOLUMES
Today’s end users have and store far too much information, most of which is redundant or out
of date, containing many duplicates and drafts. The biggest direct spend in eDiscovery is the
processing of information — on average, about $1,800 per GB. Therefore, tools that minimize
the amount of information tobe processed present potentially huge cost savings by
maintaining a smaller “haystack” to search.
IMPROVE EFFICIENCYFOR LEGAL PROFESSIONALS
Another large eDiscovery expense is incurred by the legal professionals who review
information. Tools with built-in visual analytics can make legal professionals more efficient by
determining whether or not information is relevant, privileged or needs to be produced in
response to a discovery request. Tools aimed at making highly paid lawyers as efficient as
possible represents one of the largest potential cost savings in eDiscovery.
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MAINTAIN CHAIN OF CUSTODY AND AVOID SPOLIATION
As some court cases have demonstrated, any alteration or deletion of potential evidence can
result in huge fines. Tools that monitor chain of custody and lock down information can help
companies avoid altering or deleting potentially relevant information. This scenario holds true
for both litigation and audits.
Beyond these objectives, another important consideration is the decision to select a solution
that does not require the replacement of existing technology. By staying with current
infrastructure and applications, companies can maintain existing repositories and content in
the same physical location to gain additional cost and productivity benefits. With a federated
approach to policy control, search and legal holds, companies can limit business disruption
while enhancing the ability to access, control and preserve all information. This strategy also
eliminates the costs associated with migrating to another platform.
Critical Capabilities for Effective eDiscovery
Plans for litigation preparedness are most effectively deployed as part of a proactive and
holistic Information Governance strategy. The following capabilities combine to provide a solid
foundation toensurean organization has a solution in place to conduct an effective eDiscovery
investigation.
EMAIL AND INSTANT MESSAGE (IM) MANAGEMENT
Part of the total Information Governance solution must address the management of email and
instant messages as valuable corporate assets. The solution must include capabilities to
effectively manage email volumes and conduct eDiscovery tasks across all email and IM
records — whether current or archived.
ENTERPRISE RETENTION MANAGEMENT
The complex task of managing records and non-records across file servers, email, email
archives, document management and imaging systems requires a carefully considered
retention plan. Effective solutions provide comprehensive lifecycle management of vital
corporateknowledge assets while reducing end-user burden and administrative overhead.
Implementing a superior Information Governance solution enables companies to effectively
control and manage physical, electronic and email content in a consistent manner through
acentralized policy engine that ensures proactive compliance with legal, regulatory and
business obligations.
ADVANCED EDISCOVERY
Bymaking discovery processes repeatable, companies can reduce costs, proactively mitigate
risk, increase operational efficiency and respond to information requests more effectively.
Advanced eDiscovery capabilities can further streamline processes and reduce costs through
file content preservation, file metadata preservation and tagging files for identification and
redaction. Enterprise eDiscovery should also span all information sources, regardless of format
or location.
WHITE PAPER: EDISCOVERY AND LITIGATION READINESS 7
Key Tactics for Increasing Preparedness
eDiscovery solutions should allow an organization to manage and control unstructured
information created in email, instant messages, text messages and electronic documents.
And, the full process of eDiscovery involves the management, identification, preservation,
collection, processing, review, analysis, production and presentation of information that might
be useable in litigation. To accomplish these steps effectively, the right solution should
integrate directly into existing business systems and processes and perform its tasks without
derailing the regular course of business.
Organizations can increase litigation preparedness by choosing a solution that includes
these tactics:
• Total eDiscovery through enterprise-wide information governance
• Infrastructure independence
• Minimized business disruption
TOTAL EDISCOVERY THROUGH ENTERPRISE-WIDE INFORMATION GOVERNANCE
Toeffectively address litigation preparedness, solutions should offer capabilities that span the
full eDiscovery continuum and enable information management, identification, preservation,
collection and processing. This will allow the collection and presentation of only necessary,
legally defensible information — including both electronic and physical information.
INFRASTRUCTURE INDEPENDENCE
An infrastructure-independent solution will support all leading email, storage, archiving,
content and document management systems. Organizations should avoid solutions that are
not flexible enough toaccommodatepre-existing technology or that compromise their efforts
due to a particular infrastructure proliferation. It is also critical that a solution enable the
discovery of information from file shares, desktops and laptops.
MINIMIZED BUSINESS DISRUPTION
An effective solution will not interfere with employee productivity, but will ensure that relevant
documents needed for litigation, audit or disclosures are produced in an efficient manner.
Information placed on legal hold should not negatively affect the quality of work and must
ensurecompliance to preservation requirements.
SECTION 3: BENEFITS
Achieve Greater Benefits With a Comprehensive Information
Governance Strategy That Includes eDiscovery
There are many offerings available to help companies address the complex challenges inherent
in litigation, audit and other types of investigations or disclosures. There are also best practices
and guidelines, such as the Electronic Discovery Reference Model (EDRM), that may be
followed to get the most out of the supporting technology-based solution. To manage risk
proactively and ensure an effective response in the event of litigation or audit, the chosen
solution should include eDiscovery as part of a total Information Governance strategy.
8 WHITE PAPER: EDISCOVERY AND LITIGATION READINESS