BOSTON -- For any organization, culling thousands of documents for trial is painstaking.
In the face of this onerous process, records managers and lawyers -- two groups that can clash culturally -- must learn how to collaborate and ease the pain of e-discovery.
Known as document review, the culling of documents for trial can take hundreds of man-hours and lawyers galore -- not to mention hundreds of thousands of dollars -- to sift through the ziggurat of documents the process entails.
Lawyers and records managers -- the two groups at the forefront of safeguarding company information against risk -- have often been locked in conflict.
Still, if processes like e-discovery and records management have become more cumbersome and expensive with the proliferation of data, they have also become more critical. Between 2005 and 2013, there have been more than 600 million breaches of personally identifiable information (PII), according to the Privacy Rights Clearinghouse. Events like Target Inc.'s 2013 leak of 70 million customers' PII have fundamentally changed the dialogue about how to manage enterprise information.
"The event has caused people to talk about big data at a societal, consumer level," said Sandra Serkes, president and CEO of Valora Technologies, a content analytics company in Bedford, Massachusetts, in the keynote session at a New England Chapter ARMA meeting. "It is no longer a matter of if your data will suffer an event but when."
But two groups at the forefront of safeguarding company information -- lawyers and records managers -- have often been locked in conflict. Records managers have a reputation for being fussy librarian types -- bogged down in details and fixated on process and rules about retaining and disposing of content. Litigation teams, on the other hand, are often plagued by short-term thinking and a proclivity for eleventh-hour crisis management rather than proactive decision-making. They tend to operate with fewer nuances, leaving whatever documents aren't relevant to the case on the cutting-room floor, so to speak. Leaving these documents fallow, not knowing what is in them and unmanaged, can subject a company to legal risk down the line.
Analysts agree that records management has been siphoned off to simply "archive" data rather than manage and curate it throughout its lifecycle. "The missing link is that … the way that the function sits inside corporations is way too focused on the end of the business process," said Forrester Research analyst Cheryl McKinnon.
These groups' clashing perspectives can derail the high-stakes effort of e-discovery unless the gulf between approaches is addressed. "How are you going to cross this divide?" Serkes asked in a session on what records managers and litigation teams can learn from each other.
How clashing sides can meet in the middle
Getting lawyers and records management departments on the same page is a focus of Serkes' work as she helps clients cull enterprise content for various purposes, including litigation. Serkes said that records managers' perspectives are inherently beneficial to the litigation side in helping understand how to manage the reams of data they have to wrestle with.
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"You live in this world. You can help [lawyers] get there," she said.
ARMA member and records manager Heidi Bogner also noted that litigation teams are just one set of stakeholders that need to be educated. "IT owns digital records in our organization," said Bogner, who works at Paris-based pharmaceutical company Sanofi. "So we spend a lot of time educating them about concepts like retention and disposal." Retention and disposal indicate how long documents should be archived and when they should be disposed.
Serkes recommended five ways in which records managers and lawyers could take the best from each other's approaches.
- PII is everywhere. Risk abounds and companies now have to make managing data and preventing breaches a central part of their strategy. Records managers' proactive strategies can be helpful in this vein. "Expect the worst," Serkes warned.
- Better management of documents as a whole. Lawyers tend to view the e-discovery process as one of brute force, while records managers are more likely to use the opportunity to organize and categorize information -- not just neglect everything that's excluded in preparation for legal cases. "Lawyers need to understand the forever flow of information and be educated on the day-forward concept" of organizing documents even if they aren't relevant to the specific proceedings, Serkes said.
- Document acquisition, retention and disposal. Lawyers' single-minded approach to data prevents them from thinking about the entire lifecycle of that content. "Litigation has a casual notion of disposal," Serkes said. But records managers can help lawyers understand that documents that aren't disposed of according to their designated retention schedules can be a liability. If the content is disposed of, it isn't subject to discovery. But if companies fail to dispose of it, it is fair game for use as evidence at trial.
- Reality of tradeoffs. Records managers can show the C-suite and lawyers how to do cost-benefit analyses on their efforts. They can help quantify the return on investment of their work by assessing the potential cost of a breach that the company is unprepared for. They can also demonstrate how to deal with outliers, peak content issues processing and so on.
- A long-term view. Records managers are best positioned to show litigation teams how to manage content apart from the isolated legal matter and start to treat documents as enterprise assets that have to be carefully guarded and managed on an ongoing basis.
While many litigation teams have begun to understand the importance of protecting, nurturing and managing data, consultant Michael Landau at Kiersted Systems LP in New York acknowledged that it is an ongoing process of education.
"There is still a spectrum of knowledge out there," Landau said.