Defensible Deletion: The Cornerstone of Intelligent Information Governance
The struggle to stay above the rising tide of information is a constant battle for organizations. Not only are the costs and logistics associated with data storage more troubling than ever, but so are the potential legal consequences. Indeed, the news headlines are constantly filled with horror stories of jury verdicts, court judgments and unreasonable settlements involving organizations that failed to effectively address their data stockpiles. While there are no quick or easy solutions to these problems, an ever increasing method for effectively dealing with these issues is through an organizational strategy referred to as defensible deletion. A defensible deletion strategy could refer to many items. But at its core, defensible deletion is a comprehensive approach that companies implement to reduce the storage costs and legal risks associated with the retention of electronically stored information (ESI). Organizations that have done so have been successful in avoiding court sanctions while at the same time eliminating ESI that has little or no business value. The first step to implementing a defensible deletion strategy is for organizations to ensure that they have a top-down plan for addressing data retention. This typically requires that their information governance principals – legal and IT – are cooperating with each other. These departments must also work jointly with records managers and business units to decide what data must be kept and for what length of time. All such stakeholders in information retention must be engaged and collaborate if the organization is to create a workable defensible deletion strategy. Cooperation between legal and IT naturally leads the organization to establish records retention policies, which carry out the key players’ decisions on data preservation. Such policies should address the particular needs of an organization while balancing them against litigation requirements. Not only will that enable a company to reduce its costs by decreasing data proliferation, it will minimize a company’s litigation risks by allowing it to limit the amount of potentially relevant information available for current and follow-on litigation. In like manner, legal should work with IT to develop a process for how the organization will address document preservation during litigation. This will likely involve the designation of officials who are responsible for issuing a timely and comprehensive litigation hold to custodians and data sources. This will ultimately help an organization avoid the mistakes that often plague document management during litigation. The Role of Technology in Defensible Deletion In the digital age, an essential aspect of a defensible deletion strategy is technology. Indeed, without innovations such as archiving software and automated legal hold acknowledgements, it will be difficult for an organization to achieve its defensible deletion objectives. On the information management side of defensible deletion, archiving software can help enforce organization retention policies and thereby reduce data volume and related storage costs. This can be accomplished with classification tools, which intelligently analyze and tag data content as it is ingested into the archive. By so doing, organizations may retain information that is significant or that otherwise must be kept for business, legal or regulatory purposes – and nothing else. An archiving solution can also reduce costs through efficient data storage. By expiring data in accordance with organization retention policies and by using single instance storage to eliminate ESI duplicates, archiving software frees up space on company servers for the retention of other materials and ultimately leads to decreased storage costs. Moreover, it also lessens litigation risks as it removes data available for future litigation. On the eDiscovery side of defensible deletion, an eDiscovery platform with the latest in legal hold technology is often essential for enabling a workable litigation hold process. Effective platforms enable automated legal hold acknowledgements on various custodians across multiple cases. This allows organizations to confidently place data on hold through a single user action and eliminates concerns that ESI may slip through the proverbial cracks of manual hold practices. Organizations are experiencing every day the costly mistakes of delaying implementation of a defensible deletion program. This trend can be reversed through a common sense defensible deletion strategy which, when powered by effective, enabling technologies, can help organizations decrease the costs and risks associated with the information explosion.Breaking News: Recusal Motion in Da Silva Moore Case Denied
In what might be characterized as the most anticipated ruling in the eDiscovery world over the past several months, the district court in Da Silva Moore v. Publicis Groupe today denied the plaintiffs’ motion to recuse the Honorable Andrew Peck as the assigned magistrate to that action. In rejecting the plaintiffs’ recusal request, United States District Court Judge Andrew Carter held that “Judge Peck’s decision accepting computer-assisted review, reached upon consideration of the applicable law, was not influenced by bias, nor did it create any appearance of bias.” Judge Carter’s decision is particularly significant as it leaves undisturbed Judge Peck’s orders regarding the use of predictive coding and his declaration that computer-assisted review in eDiscovery is “acceptable in appropriate cases.” Moreover, Judge Carter gave another judicial imprimatur to predictive coding with his determination that it “does not inherently favor one party over the other in this case.” With today’s ruling, Judge Carter has perhaps finally brought to a close the contentious sideshow that nearly overshadowed the first known case involving the use of predictive coding in eDiscovery. With its potential to reduce the costs and delays associated with the review of ESI, predictive coding holds incredible promise for the future of eDiscovery.Spotlighting the Top Electronic Discovery Cases from 2012
With the New Year quickly approaching, it is worth reflecting on some of the key eDiscovery developments that have occurred during 2012. While legislative, regulatory and rulemaking bodies have undoubtedly impacted eDiscovery, the judiciary has once again played the most dramatic role. There are several lessons from the top 2012 court cases that, if followed, will likely help organizations reduce the costs and risks associated with eDiscovery. These cases also spotlight the expectations that courts will likely have for organizations in 2013 and beyond. Implementing a Defensible Deletion Strategy Case: Brigham Young University v. Pfizer, 282 F.R.D. 566 (D. Utah 2012) In Brigham Young, the plaintiff university had pressed for sanctions as a result of Pfizer’s destruction of key documents pursuant to its information retention policies. The court rejected that argument because such a position failed to appreciate the basic workings of a valid corporate retention schedule. As the court reasoned, “[e]vidence may simply be discarded as a result of good faith business procedures.” When those procedures operate to inadvertently destroy evidence before the duty to preserve is triggered, the court held that sanctions should not issue: “The Federal Rules protect from sanctions those who lack control over the requested materials or who have discarded them as a result of good faith business procedures.” Summary: The Brigham Young case is significant since it emphasizes that organizations should implement a defensible deletion strategy to rid themselves of data stockpiles. Absent a preservation duty or other exceptional circumstances, organizations that pare back ESI pursuant to “good faith business procedures” (such as a neutral retention policy) will be protected from sanctions. **Another Must-Read Case: Danny Lynn Elec. v. Veolia Es Solid Waste (M.D. Ala. Mar. 9, 2012) Issuing a Timely and Comprehensive Litigation Hold Case: Apple, Inc. v. Samsung Electronics Co., Ltd, --- F. Supp. 2d. --- (N.D. Cal. 2012) Summary: The court first issued an adverse inference instruction against Samsung to address spoliation charges brought by Apple. In particular, the court faulted Samsung for failing to circulate a comprehensive litigation hold instruction when it first anticipated litigation. This eventually culminated in the loss of emails from several key Samsung custodians, inviting the court’s adverse inference sanction. Ironically, however, Apple was subsequently sanctioned for failing to issue a proper hold notice. Just like Samsung, Apple failed to distribute a hold until several months after litigation was reasonably foreseeable. The tardy hold instruction, coupled with evidence suggesting that Apple employees were “encouraged to keep the size of their email accounts below certain limits,” ultimately led the court to conclude that Apple destroyed documents after its preservation duty ripened. The Lesson for 2013: The Apple case underscores the importance of issuing a timely and comprehensive litigation hold notice. For organizations, this likely means identifying the key players and data sources that may have relevant information and then distributing an intelligible hold instruction. It may also require suspending aspects of information retention policies to preserve relevant ESI. By following these best practices, organizations can better avoid the sanctions bogeyman that haunts so many litigants in eDiscovery. **Another Must-Read Case: Chin v. Port Authority of New York, 685 F.3d 135 (2 nd Cir. 2012) Judicial Approval of Predictive Coding Case: Da Silva Moore v. Publicis Groupe, --- F.R.D. --- (S.D.N.Y. Feb. 24, 2012) Summary: The court entered an order that turned out to be the first of its kind: approving the use of predictive coding technology in the discovery phase of litigation. That order was entered pursuant to the parties’ stipulation, which provided that defendant MSL Group could use predictive coding in connection with its obligation to produce relevant documents. Pursuant to that order, the parties methodically (yet at times acrimoniously) worked over several months to fine tune the originally developed protocol to better ensure the production of relevant documents by defendant MSL. The Lesson for 2013: The court declared in its order that predictive coding “is an acceptable way to search for relevant ESI in appropriate cases.” Nevertheless, the court also made clear that this technology is not the exclusive method now for conducting document review. Instead, predictive coding should be viewed as one of many different types of tools that often can and should be used together. ** Another Must-Read Case: In Re: Actos (Pioglitazone) Prods. Liab. Litig. (W.D. La. July 10, 2012) Proportionality and Cooperation are Inextricably Intertwined Case: Pippins v. KPMG LLP, 279 F.R.D. 245 (S.D.N.Y. 2012) Summary: The court ordered the defendant accounting firm (KPMG) to preserve thousands of employee hard drives. The firm had argued that the high cost of preserving the drives was disproportionate to the value of the ESI stored on the drives. Instead of preserving all of the drives, the firm hoped to maintain a reduced sample, asserting that the ESI on the sample drives would satisfy the evidentiary demands of the plaintiffs’ class action claims. The court rejected the proportionality argument primarily because the firm refused to permit plaintiffs or the court to analyze the ESI found on the drives. Without any transparency into the contents of the drives, the court could not weigh the benefits of the discovery against the alleged burdens of preservation. The court was thus left to speculate about the nature of the ESI on the drives, reasoning that it went to the heart of plaintiffs’ class action claims. As the district court observed, the firm may very well have obtained the relief it requested had it engaged in “good faith negotiations” with the plaintiffs over the preservation of the drives. The Lesson for 2013: The Pippins decision reinforces a common refrain that parties seeking the protection of proportionality principles must engage in reasonable, cooperative discovery conduct. Staking out uncooperative positions in the name of zealous advocacy stands in sharp contrast to proportionality standards and the cost cutting mandate of Rule 1. Moreover, such a tactic may very well foreclose proportionality considerations, just as it did in Pippins. **Another Must-Read Case: Kleen Products LLC v. Packaging Corp. of America (N.D. Ill. Sept. 28, 2012) Conclusion There were any number of other significant cases from 2012 that could have made this list. We invite you to share your favorites in the comments section or contact us directly with your feedback.
They’re Here…. 7th Circuit Mock Hearing & Panel Discussion Videos on Predictive Coding
The 7 th Circuit Pilot Program sponsored an educational mock hearing and expert panel discussion in Chicago last May to tackle important issues related to the use of predictive coding technology. The long awaited video footage of the event is finally here and available for review courtesy of Symantec. The event begins with U.S. Chief Judge for the Northern District of Illinois, James F. Holderman, welcoming a courtroom packed full of people eager to learn more about novel issues presented by increased usage of predictive coding technology in litigation. National Archives Director of Litigation, Jason R. Baron, follows with opening remarks about the role of information retrieval in eDiscovery to set the stage for a lively mock hearing and panel discussion about a number of hot topics related to the use of predictive coding technology. Notable speakers include Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz; Dr. David Lewis, co-founder of the TREC Legal Track; Ralph Losey, Partner at Jackson Lewis; Matt Nelson, eDiscovery Counsel at Symantec; Jeff Sharer, Partner at Sidley Austin; andMartin T. Tully, Partner and National eDiscovery Practice Group Chair, Katten Muchin Rosenman LLP. The hypothetical hearing centers on a dispute between parties to a patent litigation matter regarding the use of predictive coding technology. Plaintiffs argue defendants should use predictive coding technology to assist with the production and review of documents. Defendants counter that they have a process in place for responding to discovery requests that is sufficient and that includes the use of legal technology approaches like keyword search that are commonly used during discovery. The hearing participants take positions (not necessarily their own) about important issues such as the reliability of predictive coding technology, steps needed to establish a protocol that is fair to both parties, and cost shifting. Ralph Losey does an excellent job playing the role of “judge” and summarizes key arguments made by each party before ruling from the bench at the conclusion of the hearing. Following the mock hearing, Losey and others debated important issues related to the use of predictive coding as part of a lively panel discussion. The panel discussion covered a broad range of interesting issues, but some of the liveliest discussion related to the following topics: Should parties be required to disclose their use of predictive coding technology? Is it appropriate to use keyword searches to cull electronically stored information (ESI) prior to using predictive coding technology? Could the misapplication of statistics be the downfall of predictive coding? The mock argument and panel discussion are among several excellent resources practitioners should consider reviewing to help them navigate a rapidly shifting and sometimes confusing predictive coding technology landscape. Please feel free to share your comments and feedback below and be sure to visit the 7 th Circuit Pilot Program’s homepage for more information about the group’s efforts to help clarify some of the most complex and important eDiscovery issues facing litigators today. This post was co-authored by Symantec's Allison Walton, eDiscovery CounselThe Global Impact of eDiscovery and Data Protection Laws in Germany
The acknowledged power of Continental Europe is Germany. Its steady economy and stable politics offer foreign companies an inviting prospect for investment. And yet, as organizations explore and begin developing business opportunities in Germany, they often become entangled in a web of unfamiliar legal issues. These issues, particularly eDiscovery and data protection laws, can be a costly and time consuming trap for unsuspecting companies. To avoid becoming ensnared by legal minutiae, attorney fees and lost opportunities, companies should consider gaining at least a basic understanding regarding the German eDiscovery and data protection landscape. Discovery in Germany By way of introduction, it should be noted that Germany, like most European countries, is a civil code country whose legal traditions are distinct from the common law notions that characterize the United States. According to its legal precepts, civil litigation in Germany is conducted in a vastly different fashion than in the U.S. For example, “discovery,” as it is known in the United States, does not exist in Germany. Interrogatories, categorical document requests and requests for admissions are simply unavailable as discovery devices. Instead, Germany only allows a limited exchange of documents, with the parties typically only disclosing information that supports their claims. The U.S. Court of Appeals for the Seventh Circuit recently commented on this key distinction when it observed in Heraeus Kulzer v. Biomet that “the German legal system . . . does not authorize discovery in the sense of Rule 26 of the Federal Rules of Civil Procedure.” The court went on to explain that “[a] party to a German lawsuit cannot demand categories of documents from his opponent. All he can demand are documents that he is able to identify specifically—individually, not by category.” Another key distinction to discovery in Germany is the lack of rules or case law requiring the preservation of ESI or paper documents. This stands in sharp contrast to American jurisprudence, which typically requires organizations to preserve information as soon as they “reasonably anticipate” litigation. Data Protection in Germany Another critical, distinguishing characteristic of Germany’s legal traditions are its notions of data protection and individual privacy. Unlike the mostly laissez-faire approach in the U.S. to data protection, Germany has adopted a comprehensive framework to secure personal information from unreasonable government and corporate intrusions. To guard against such intrusions, Germany has strict requirements that govern any “processing” of personal information. In addition, corporate data processing in Germany must satisfy company Works Councils, which represent the interests of employees and protect their privacy rights. Those protections extend to domestic litigation and international data transfers, to which Works Councils and company Data Protection Officers may object. Another important aspect to German data protection laws are the restrictions they place on transferring personal information across international borders. Companies with offices in Germany must ensure that the country where such data will be transferred has enacted laws that meet EU data protection standards. Transfers of personal data to countries that do not meet those standards are generally forbidden, with substantial fines imposed for non-compliance. This backdrop of complexity suggests that companies exploring business opportunities in Germany should obtain a better understanding of its discovery and data protection laws. There are various resources that provide straightforward answers to these issues at no cost to the end-user. For example, global legal expert James Daley recently recorded two podcasts that discuss the challenges associated with German discovery and data privacy laws. Think tanks such as The Sedona Conference have also made available materials that provide significant detail on these issues, including its “International Overview of Discovery, Data Privacy, and Disclosure Requirements.” By obtaining a greater awareness of the legal workings inside Germany, organizations can more capably develop a cooperative, proactive process for how they will address data preservation and production for cross-border litigation. By so doing, organizations can be better prepared to address potential eDiscovery and data protection snares that are inextricably intertwined with globalization.
Legal Tech 2013 Sessions: Symantec explores eDiscovery beyond the EDRM
Having previously predicted the 'happenings-to-be' as well as recommended the 'what not to do' at LegalTech New York, the veteran LTNY team here at Symantec has decided to build anticipation for the 2013 event via a video series starring the LTNY un-baptized associate. Get introduced to our eDiscovery-challenged protagonist in the first of our videos (above). As for this year's show we’re pleased to expand our presence and are very excited to introduce eDiscovery without limits, along with a LegalTech that promises sessions, social events and opportunities for attendees in the same vein. In regards to the first aspect – the sessions – the team of Symantec eDiscovery counsels will moderate panelist sessions on topics ranging across and beyond the EDRM. Joined by distinguished industry representatives they’ll push the discussion deeper in 5 sessions with a potential 6 hours of CLE credits offered to the attendees. Matt Nelson, resident author of Predictive Coding for Dummies will moderate “How good is your predictive coding poker face?” where panelists tackle the recently controversial subjects of disclosing the use of Predictive Coding technology, statistical sampling and the production of training sets to the opposition. Allison Walton will moderate, “eDiscovery in 3D: The New Generation of Early Case Assessment Techniques” where panelists will enlighten the crowd on taking ECA upstream into the information creation and retention stages and implementing an executable information governance workflow. Allison will also moderate“You’re Doing it Wrong!!! How To Avoid Discovery Sanctions Due to a Flawed Legal Hold Process”where panelistsrecommend best practices towards a defensible legal hold process in light of potential changes in the FRCP and increased judicial scrutiny of preservation efforts. Phil Favro will moderate “Protecting Your ESI Blindside: Why a “Defensible Deletion” Offense is the Best eDiscovery Defense” where panelists debate the viability of defensible deletion in the enterprise, the related court decisions to consider and quantifying the ROI to support a deletion strategy. Chris Talbott will moderate a session on “Bringing eDiscovery back to Basics with the Clearwell eDiscovery Platform”, where engineer Anna Simpson will demonstrate Clearwell technology in the context of our panelist’s everyday use on cases ranging from FCPA inquires to IP litigation. Please browse our microsite for complete supersession descriptions and a look at Symantec’s LTNY 2013 presence. We hope you stay tuned to eDiscovery 2.0 throughout January to hear what Symantec has planned for the plenary session, our special event, contest giveaways and product announcements.Symantec Positioned Highest in Execution and Vision in Gartner Archiving MQ
Once again Gartner has named Symantec as a leader in the Enterprise Information Archiving magic quadrant. We’ve continued to invest significantly in this market and it is gratifying to see the recognition for the continued effort we put into archiving both in the cloud and on premises with our Enterprise Vault.cloud and Enterprise Vault products. Symantec has now been rated a leader 9 years in a row. This graphic was published by Gartner, Inc. as part of a larger research document and should be evaluated in the context of the entire document. The Gartner document is available upon request from Symantec. Gartner does not endorse any vendor, product or service depicted in the Magic Quadrant, and does not advise technology users to select only those vendors with the highest ratings. Gartner research publications consist of the opinions of Gartner’s research organization and should not be construed as statements of fact. Gartner disclaims all warranties, expressed or implied, with respect to this research, including any warranties of merchantability or fitness for a particular purpose. This year marks a transition in a couple of regards. We are seeing an acceleration of customers looking for the convenience and simplicity of SaaS based archiving solution. The caveat being that they want the security and trust that only a vendor like Symantec can deliver. Similarly the market has continued to ask for integrated solutions that deliver information archiving and eDiscovery to quickly address often complex and time sensitive process of litigation and regulatory requests. The deep integration we offer between our archiving solutions – Enterprise Vault and Enterprise Vault.cloud –and the Clearwell eDiscovery Platform has led many customers to deploy these together to streamline their eDiscovery workflow. An archive is inherently deployed with the long term in mind. Over the history of Gartner’s Enterprise Information Archiving MQ, only Symantec has provided a consistent solution to customers by investing and innovating with Enterprise Vault to lead the industry in performance, functionality, and support without painful migrations or changes. We’re excited about what we have planned next for Enterprise Vault and Enterprise Vault.cloud and intend to maintain our leadership in the years to come. Our customers will continue to be able to manage their critical information assets and meet their needs for eDiscovery and Information Governance as we improve our products year after year.
December Symantec SharePoint Governance Twitter Chat
Join hashtag #IGChat and learn about SharePoint governance and creating effective governance plans Over the years, SharePoint has become a favorite among organizations as a place to share and manage content. As SharePoint adoption increases – storage, performance and on-going maintenance become major challenges, and SharePoint governance becomes essential. Archiving and eDiscovery solutions provide a key part in any effective and lasting governance strategy for SharePoint. In a 2012 survey conducted by Osterman research, the results showed that 39 percent of all SharePoint implementations still don’t have a governance plan. This is due to the fact that implementing governance plans can be difficult. During this Twitter Chat we will discuss the reasons why organizations need SharePoint governance and the role of archiving and eDiscovery in governance plans. Please join Symantec’s archiving/eDiscovery and SharePoint experts, Dave Scott (@DScottyt) and Rob Mossi (@RMossi24) next Tuesday, December 18 at 10 am PT to chat. Dave Scott: Dave Scott is a Group Product Manager at Symantec specializing in social media and SharePoint archiving and eDiscovery. He has contributed articles to a number of leading industry publications and is a frequent contributor to Connect.symantec.com. Rob Mossi: Rob Mossi is a Sr. Product Marketing Manager with Symantec’s Enterprise Vault product team. With a focus on SharePoint, Rob actively participates in SharePoint archiving and information governance thought leadership activities, including research, conferences and social media. Twitter Chat: SharePoint Governance #IGChat Date: Tuesday, December 18, 2012 Time: 10 am PT Length: 1 hour Where: Twitter – follow the hashtag #IGChat Moderator: Symantec’s Dave Scott (@DScottyt)What Abraham Lincoln Teaches about Defensible Deletion of ESI
The reviews are in and movie critics are universally acclaiming Lincoln, the most recent Hollywood rendition regarding the sixteenth president of the United States. While viewers may or may not enjoy the movie, the focus on Abraham Lincoln brings to mind a rather key insight for organizations seeking to strengthen their defensible deletion process. Lincoln has long been admired for his astute handling of the U.S. Civil War and for his inventive genius (he remains the only U.S. President who patented an invention). Nevertheless, it is Lincoln’s magnanimous, yet shrewd treatment of his rivals that provides the key lesson for organizations today. With a strategy that inexplicably escapes many organizations, Lincoln intelligently organized his documents and other materials so that he could timely retrieve them to help keep his political enemies in check. This strategy was particularly successful with his Secretary of the Treasury, Salmon Chase, who constantly undermined Lincoln in an effort to bolster his own presidential aspirations. To blunt the effect of Chase’s treachery, Lincoln successfully wielded the weapon of information: Chase’s letters to Lincoln that were filled with problematic admissions. Doris Kearns Goodwin chronicled in her Pulitzer Prize winning book, Team of Rivals, how Lincoln always seemed to access that information at a moment’s notice to save him from Chase’s duplicity. Lincoln’s tactics reinforce the value of retaining and retrieving important information in a time of need. Lacking the organizational and technological capacity to do so may prevent companies from pulling up information at a crucial moment, be it for business, legal or regulatory purposes. For this and many other reasons, industry experts are recommending that organizations implement a defensible deletion strategy. Defensible Deletion Requires Deletion Such a strategy could have some success if it is powered by the latest in effective retention technologies such as data classification and automated legal hold. Such innovations will better enable organizations to segregate and preserve business critical ESI. And yet, it is not enough to just adopt the preservation side of this strategy, for the heart of defensible deletion requires just that – deleting large classes of superfluous, duplicative and harmful data – if its benefits are ever to be realized. Companies that fail to delete such ESI will likely never come off conqueror in the “battle of the data bulge.” Indeed, such a growing waistline of data is problematic for three reasons. First, it can place undue pressure on an organization’s storage infrastructure and needlessly increase the cost of data retention. It can also result in higher eDiscovery costs as the organization is forced to review and analyze all of that ESI largesse. Finally, a potentially fatal risk of producing harmful materials – kept beyond the time required by law – in eDiscovery will unnecessarily increase. All of which could have been obviated had the enterprise observed the rule of “good corporate housekeeping” by eliminating ESI in a manner approved by courts and the rules makers. For organizations willing to get rid of their digital clutter, defensible deletion offers just what they need so as to reduce the costs and risks of bloated ESI retention. Doing so will help companies make better use that information so, like Honest Abe, they can stave off troublesome challenges threatening the enterprise.
Federal Directive Hits Two Birds (RIM and eDiscovery) with One Stone
The eagerly awaited Directive from The Office of Management and Budget (OMB) and The National Archives and Records Administration (NARA) was released at the end of August. In an attempt to go behind the scenes, we’ve asked the Project Management Office (PMO) and the Chief Records Officer for the NARA to respond to a few key questions. We know that the Presidential Mandatewas the impetus for the agency self-assessments that were submitted to NARA. Now that NARA and the OMB have distilled those reports, what are the biggest challenges on a go forward basis for the government regarding record keeping, information governance and eDiscovery? “In each of those areas, the biggest challenge that can be identified is the rapid emergence and deployment of technology. Technology has changed the way Federal agencies carry out their missions and create the records required to document that activity. It has also changed the dynamics in records management. In the past, agencies would maintain central file rooms where records were stored and managed. Now, with distributed computing networks, records are likely to be in a multitude of electronic formats, on a variety of servers, and exist as multiple copies. Records management practices need to move forward to solve that challenge. If done right, good records management (especially of electronic records) can also be of great help in providing a solid foundation for applying best practices in other areas, including in eDiscovery, FOIA, as well as in all aspects of information governance.” What is the biggest action item from the Directive for agencies to take away? “The Directive creates a framework for records management in the 21 st century that emphasizes the primacy of electronic information and directs agencies to being transforming their current process to identify and capture electronic records. One milestone is that by 2016, agencies must be managing their email in an electronically accessible format (with tools that make this possible, not printing out emails to paper). Agencies should begin planning for the transition, where appropriate, from paper-based records management process to those that preserve records in an electronic format. The Directive also calls on agencies to designate a Senior Agency Official (SAO) for Records Management by November 15, 2012. The SAO is intended to raise the profile of records management in an agency to ensure that each agency commits the resources necessary to carry out the rest of the goals in the Directive. A meeting of SAOs is to be held at the National Archives with the Archivist of the United States convening the meeting by the end of this year. Details about that meeting will be distributed by NARA soon.” Does the Directive holistically address information governance for the agencies, or is it likely that agencies will continue to deploy different technology even within their own departments? “In general, as long as agencies are properly managing their records, it does not matter what technologies they are using. However, one of the drivers behind the issuance of the Memorandum and the Directive was identifying ways in which agencies can reduce costs while still meeting all of their records management requirements. The Directive specifies actions (see A3, A4, A5, and B2) in which NARA and agencies can work together to identify effective solutions that can be shared.” Finally, although FOIA requests have increased and the backlog has decreased, how will litigation and FOIA intersecting in the next say 5 years? We know from the retracted decision inNDLON that metadata still remains an issue for the government…are we getting to a point where records created electronically will be able to be produced electronically as a matter of course for FOIA litigation/requests? “In general, an important feature of the Directive is that the Federal government’s record information – most of which is in electronic format – stays in electronic format. Therefore, all of the inherent benefits will remain as well – i.e., metadata being retained, easier and speedier searches to locate records, and efficiencies in compilation, reproduction, transmission, and reduction in the cost of producing the requested information. This all would be expected to have an impact in improving the ability of federal agencies to respond to FOIA requests by producing records in electronic formats.” Fun Fact- Is NARA really saving every tweet produced? “Actually, the Library of Congress is the agency that is preserving Twitter. NARA is interested in only preserving those tweets that a) were made or received in the course of government business and b) appraised to have permanent value. We talked about this on our Records Express blog.” “We think President Barack Obama said it best when he made the following comment on November 28, 2011: “The current federal records management system is based on an outdated approach involving paper and filing cabinets. Today’s action will move the process into the digital age so the American public can have access to clear and accurate information about the decisions and actions of the Federal Government.” Paul Wester, Chief Records Officer at the National Archives, has stated that this Directive is very exciting for the Federal Records Management community. In our lifetime none of us has experienced the attention to the challenges that we encounter every day in managing our records management programs like we are now. These are very exciting times to be a records manager in the Federal government. Full implementation of the Directive by the end of this decade will take a lot of hard work, but the government will be better off for doing this and we will be better able to serve the public.” Special thanks to NARA for the ongoing dialogue that is key to transparent government and the effective practice of eDiscovery, Freedom Of Information Act requests, records management and thought leadership in the government sector. Stay tuned as we continue to cover these crucial issues for the government as they wrestle with important information governance challenges.