In a previous post here on the DiscoverReady blog, I began to explore information governance, or “IG.” I offered up a definition of information governance, explained why it’s a hot topic right now, and addressed the interplay between IG and other related topics such as big data and data privacy. I also promised an ongoing discussion of how a good information governance program can improve e-discovery efforts – and how a strategic e-discovery program can add value to information governance. To make good on that promise, I thought I’d begin at the beginning, and address how IG can streamline the preservation and collection of information in a discovery matter.
We often describe the flow of information through the e-discovery process (from the left side of the EDRM model to the right) as a funnel: at the wide end of the funnel we pour in all the documents the litigant preserved and collected, and at the narrow end of the funnel trickle out the relevant, responsive, non-privileged documents eligible for production. Typically a litigant tries to pour as few documents into the funnel as possible, and then works to reduce the volume at every step of the process.
But as volumes of information constantly increase, and as organizations try to mitigate the risk of sanctions for destroying relevant evidence, the wide end of the funnel keeps getting wider. Corporations over-preserve and over-collect information, counting on processing tools, culling and filtering strategies, and advanced analytic tools to bring the volume down as documents move through the funnel. But this approach is inefficient, and most of the time, needlessly expensive.
So how does an organization avoid over-preserving and over-collecting? Through good information governance. If you know what information you have and where the information is found, it becomes much easier to preserve and collect only what you need. Simple, right? Of course, it’s simple in theory but quite difficult to accomplish in practice.
In years past, e-discovery practitioners talked a lot about “data maps” – documents that identified the major sources of information within an organization and where the information could be found. Many organizations tried to create these maps, but in my experience, few of them found the maps to be effective. Given how quickly data environments change and grow, a data map was barely finished before it became out-of-date.
A modern approach to IG will be much more sophisticated than a data map. It will involve multiple disciplines within the organization, and a host of different software technologies. It will leverage data analytics and automated tools for sorting and managing information. Some will disagree with me on this point, but I believe a robust IG strategy also will rely significantly on the human element. It is not unreasonable for an organization to ask its people to make good decisions about the information they create and use throughout their workdays. For instance, an IG plan could include a policy that requires employees to communicate about work matters using certain systems (like Outlook email and company-installed instant messaging) but not others (like Snapchat or Wickr). Will there be rogue employees who choose to use the unauthorized systems despite the policy? Probably, but that doesn’t mean the policy isn’t a useful component of a comprehensive approach to IG.
As organizations turn their attention to improving information governance, inevitably they will create more focused, narrowly tailored ways to preserve and collect information for discovery. Imagine, for example: Instead of using a predictive coding tool on a population of millions of documents that were collected and processed, the same analytics engine could be used at the collections stage to identify a small fraction of that population to collect and process. Fewer documents will pour into the funnel – and fewer dollars will be spent. Here at DiscoverReady, we think that’s a better way to do discovery.
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.