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.
Email Isn't eDiscovery Top Dog Any Longer, Recent Survey Finds
Symantec today issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information (ESI) that we see expanding by the minute. Perhaps counter intuitively, the survey of legal and IT personnel at 2,000 enterprises found that email is no longer the primary source of ESI companies produced in response to eDiscovery requests. In fact, email came in third place (58%) to files/documents (67%) and database/application data (61%). Marking a departure from the landscape as recently as a few years ago, the survey reveals that email does not axiomatically equal eDiscovery any longer. Some may react incredulously to these results. For instance, noted eDiscovery expert Ralph Losey continues to stress the paramount importance of email: “In the world of employment litigation it is all about email and attachments and other informal communications. That is not to say databases aren't also sometimes important. They can be, especially in class actions. But, the focus of eDiscovery remains squarely on email.” While it’s hard to argue with Ralph, the real takeaway should be less about the relative descent of email’s importance, and more about the ascendency of other data types (including social media), which now have an unquestioned seat at the table. The primary ramification is that organizations need to prepare for eDiscovery and governmental inquires by casting a wider ESI net, including social media, cloud data, instant messaging and structured data systems. Forward-thinking companies should map out where all ESI resides company-wide so that these important sources do not go unrecognized. Once these sources of potentially responsive ESI are accounted for, the right eDiscovery tools need to be deployed so that these disparate types of ESI can be defensibly collected and processed for review in a singular, efficient and auditable environment. The survey also found that companies which employ best practices such as implementing information retention plans, automating the enforcement of legal holds and leveraging archiving tools instead of relying on backups, fare dramatically better when it comes to responding to eDiscovery requests. Companies in the survey with good information governance hygiene were: 81% more likely to have a formal retention plan in place 63% more likely to automate legal holds 50% more likely to use a formal archiving tool These top-tier companies in the survey were able to respond much faster and more successfully to an eDiscovery request, often suffering fewer negative consequences: 78% less likely to be sanctioned 47% less likely to lead to a compromised legal position 45% less likely to disclose too much information This last bullet (disclosing too much information) has a number of negative ramifications beyond just giving the opposition more ammo than is strictly necessary. Since much of the eDiscovery process is volume-based, particularly the eyes-on review component, every extra gigabyte of produced information costs the organization in both seen and unseen ways. Some have estimated that it costs between $3-5 a document for manual attorney review - and at 50,000 pages to a gigabyte, these data-related expenses can really add up quickly. On the other side of the coin, there were those companies with bad information governance hygiene. While this isn’t terribly surprising, it is shocking to see how many entities fail to connect the dots between information governance and risk reduction. Despite the numerous risks, the survey found nearly half of the respondents did not have an information retention plan in place, and of this group, only 30% were discussing how to do so. Most shockingly, 14% appear to be ostriches with their heads in the sand and have no plans to implement any retention plan whatsoever. When asked why folks weren’t taking action, respondents indicated lack of need (41%), too costly (38%), nobody has been chartered with that responsibility (27%), don’t have time (26%) and lack of expertise (21%) as top reasons. While I get the cost issue, particularly in these tough economic times, it’s bewildering to think that so many companies feel immune from the requirements of having even a basic retention plan. As the saying goes, “You don’t need to be a weatherman to tell which way the wind blows.” And, the winds of change are upon us. Treating eDiscovery as a repeatable business process isn’t a Herculean task, but it is one that cannot be accomplished without good information governance hygiene and the profound recognition that email isn’t the only game in town. For more information regarding good records management hygiene, check out this informative video blog and Contoural article.
Responsible Data Citizens Embrace Old World Archiving With New Data Sources
The times are changing rapidly as data explosion mushrooms, but the more things change the more they stay the same. In the archiving and eDiscovery world, organizations are increasingly pushing content from multiple data sources into information archives. Email was the first data source to take the plunge into the archive, but other data sources are following quickly as we increase the amount of data we create (volume) along with the types of data sources (variety). While email is still a paramount data source for litigation, internal/external investigations and compliance - other data sources, namely social media and SharePoint, are quickly catching up. This transformation is happening for multiple reasons. The main reason for this expansive push of different data varieties into the archive is because centralizing an organization’s data is paramount to healthy information governance. For organizations that have deployed archiving and eDiscovery technologies, the ability to archive multiple data sources is the Shangri-La they have been looking for to increase efficiency, as well as create a more holistic and defensible workflow. Organizations can now deploy document retention policies across multiple content types within one archive and can identify, preserve and collect from the same, singular repository. No longer do separate retention policies need to apply to data that originated in different repositories. The increased ability to archive more data sources into a centralized archive provides for unparalleled storage, deduplication, document retention, defensible deletion and discovery benefits in an increasingly complex data environment. Prior to this capability, SharePoint was another data source in the wild that needed disparate treatment. This meant that legal hold in-place, as well as insight into the corpus of data, was not as clear as it was for email. This lack of transparency within the organization’s data environment for early case assessment led to unnecessary outsourcing, over collection and disparate time consuming workflows. All of the aforementioned detractors cost organizations money, resources and time that can be better utilized elsewhere. Bringing data sources like SharePoint into an information archive increases the ability for an organization to comply with necessary document retention schedules, legal hold requirements, and the ability to reap the benefits of a comprehensive information governance program. If SharePoint is where an organization’s employees are storing documents that are valuable to the business, order needs to be brought to the repository. Additionally, many projects are abandoned and left to die on the vine in SharePoint. These projects need to be expired and that capacity must be recycled for a higher business purpose. Archives currently enable document libraries, wikis, discussion boards, custom lists, “My Sites” and SharePoint social content for increased storage optimization, retention/expiration of content and eDiscovery. As a result, organizations can better manage complex projects such as migrations, versioning, site consolidations and expiration with SharePoint archiving. Data can be analogized to a currency, where the archive is the bank. In treating data as a currency, organizations must ask themselves: why are companies valued the way they are on Wall Street? For companies that perform service or services in combination with products, they are valued many times on customer lists, data to be repurposed about consumers (Facebook), and various other databases. A recent Forbes article discusses people, value and brand as predominant indicators of value. While these valuation metrics are sound, the valuation stops short of measuring the quality of the actual data within an organization, examining if it is organized and protected. The valuation also does not consider the risks of and benefits of how the data is stored, protected and whether or not it is searchable. The value of the data inside a company is what supports all three of the aforementioned valuations without exception. Without managing the data in an organization, not only are eDiscovery and storage costs a legal and financial risk, the aforementioned three are compromised. If employee data is not managed/monitored appropriately, if the brand is compromised due to lack of social media monitoring/response, or if litigation ensues without the proper information governance plan, then value is lost because value has not been assessed and managed. Ultimately, an organization is only as good as its data, and this means there’s a new asset on Wall Street – data. It’s not a new concept to archive email, and in turn it isn’t novel that data is an asset. It has just been a less understood asset because even though massive amounts of data are created each day in organizations, storage has become cheap.SharePoint is becoming more archivable because more critical data is beingstored there, including business records, contracts and social media content.Organizations cannot fear what they cannot see until they are forced by an event to go back and collect, analyze and review that data.Costs associated with this reactive eDiscovery process can range from $3,000-30,000 a gigabyte, compared to the 20 cents per gigabyte for storage.The downstream eDiscovery costs are obviously costly, especially as organizations begin to deal in terabytes and zettabytes. Hence, plus ca change, plus c'est le meme chose and we will see this trend continue as organizations push more valuable data into the archive and expire data that has no value. Multiple data sources have been collection sources for some time, but the ease of pulling everything into an archive is allowing for economies of scale and increased defensibility regarding data management. This will decrease the risks associated with litigation and compliance, as well as boost the value of companies.