eDiscovery Daily Blog

Preparing for Litigation Before it Happens: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th).  Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into seven(!) parts, so we’ll cover each part separately.  Part one was published on Monday.  Here’s the second part.

BTW, in addition to exhibiting at ILTACON in National Harbor, MD later this month in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We want to see you!

What is Information Governance?

The most basic explanation, and one I have used for years, is that IG is the flip side of the ED coin. But before we define it, let’s take a look at what it is NOT.

Much like other discussions in other areas of eDiscovery, IG is not a product. It is, rather, a process that may incorporate several products depending upon the business type and their workflow.

Since IG is not a product, then it clearly cannot be a DMS.  Yet the most common response I received when I asked someone if they had an IG solution was, “yes, we use iManage/NetDocuments/Worldox”. A simple IG solution may include a Document Management System (DMS) product but the DMS itself is designed for the organization and search of only certain types of documents. It may have limitations on document types it can work with and almost always has a document size limit. Craig Bayer, the principal of legal document management firm Optiable, put it best when he said to me that “A DMS is not an enterprise data organization solution.”

And as a side note, for these same reasons and several others, the most important reason being that a DMS will change metadata when documents from outside the DMS are imported into it, a DMS is also not a good eDiscovery tool.  Again, it can be part of the ED workflow process but typically at the front end of that process. Thanks to Paul Unger, managing partner of the Columbus Ohio office of the Affinity Consulting Group for this tip.

So, now that we’ve discussed what is not IG, let’s talk about what it is.

IG, or as it’s also known data governance, is basically a set of rules and policies that have to do with a company’s data. These rules and policies can cover issues such as:

  • Security
  • Privacy
  • Data access
  • Data storage & maintenance
  • Data backup and/or disposal
  • Accountability for employees handling data

But the benefits of data governance don’t stop there. It can also help with:

  • Preventing isolated unregulated data storage
  • Making data accessible across the enterprise
  • Providing accurate, consistent data
  • Ensuring compliance with laws and regulations that govern data, such as the Sarbanes-Oxley Actor HIPAA

IG will also almost always involve some form of unstructured data, that is, information that either is not in a fielded form in databases or is annotated or otherwise semantically tagged in documents. Unstructured data is typically text-heavy but may contain other data such as dates and numbers. A 1998 Merrill Lynch study cited a rule of thumb that somewhere around 80-90% of all potentially usable business information may originate in unstructured form and this figure is still generally accepted as valid.

IG will always be proactive in dealing with corporate data, unlike eDiscovery which is reactive in nature But, because “data” can refer to so many different items, from email and word processing documents to A/V files and unique file types such as CAD drawing or x-rays, is it possible to have standardized best practices for all types of data usage or it is most likely that rules will be built for different business types?

In fact, different IG rules do exist for different professions and industries and some have their own data management tools. Examples include:

  • Health
  • Education
  • Business
  • Nursing
  • Manufacturing
  • Non-Profits

Other IG rules may spring up because they are imposed by entities outside the business. From something as simple as a statute of limitations to general records retention statutes or industry specific regulations and even statutory controls in areas such as privacy, external pressures on a company may force a need for a cohesive IG policy.

We’ll publish Part 3 – General Principles for Information Governance – on Friday.

So, what do you think?  Does your organization have a plan for preparing for litigation before it happens?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.