Sunday, October 17, 2010

Electronic Discovery Reference Model – Identification through Preservation and Collection

Information Management – Essential Beginning for Identification, Preservation and Collection
In my earlier post, I provided an overview of the eDiscovery process and emphasized the critical nature of the very first step: Information Management. Information management can leverage the value of IT processes and increase stakeholder satisfaction. Information management is also key to an effective records management program, which itself is fundamental to an effective eDiscovery program.

Information management is one of those concepts that every organization salutes, but the devil is always in the details. Do you have guidelines or governance for using email, including commonly overlooked items such as “Send links to content in your repository; do not send the content itself”? Do you have guidelines for using your information repository –hopefully a formal document management system—to assure that there is always one version of the truth, one single document or file that always represents the most current version of that file, and is easily found by all those with rights to view or modify it?

Most organizations do not manage content to that level, but are happy to be able to guarantee that they have a rational backup and restore strategy, assuring a credible, dependable strategy to routinely save and restore network, repository, and email files. However, complete information management goes way beyond that, including managing policies for information sharing and discovery.

Many organizations have a duty to share information, such as federal agencies responding to the Freedom of Information Act. However, the difference between disclosure and discovery is that there is no underlying dispute (or threat of one) with disclosure.  Both disclosure and discovery require effective information management policies, procedures and processes. And remember, a so-called “triggering event” requiring eDiscovery processes to be activated include not only a judicial order, a formal discovery request, but even knowledge of a pending or future legal proceeding likely to require information to be produced.

Let’s take a look again the EDRM Reference Model, with both it and the IMRM model repeated below courtesy of EDRM ( I discussed Information Management in my previous posting, but it is still central to the next three steps in the EDRM model.

Notice the two sloping lines, “Volume” (yellow) that decreases as “Relevance” (green) increases through the model, left to right. Volume is greatest at the start of the model, while Relevance is greatest towards the end. When you get to the processing-review-analysis phase, you want as all relevant documents, but as few others, as possible, to reduce the costs of work in this step.

At EMC’s recent “Writer’s Circle” symposium in New York City, attorney Ralph Losey asserted that it costs from $3 to $10 just to review files as part of an eDiscovery effort, and that it can cost $500,000 to review relevant files, including emails. And that’s at the point in the EDRM model where volume is decreasing and relevance is increasing (i.e., you’ve already culled lots of the volume). Losey and his colleague have created an incredible You Tube video about the problem of information overload in general and eDiscovery efforts in particular spiraling out of control. You owe it to yourself to view this 7 minute video. You’d never guess (until you get to the end) that a lawyer crafted this gem. More about Review in an upcoming blog posting, but Losey’s insight makes it clear how important the early steps in eDiscovery are to the whole process.

It’s easy to see why an information management program to reduce redundant files benefits not only your backup and archive processes, your records management program, the legal and compliance departments, and other members of the enterprise business community. And of course it also facilitates action when your organization receives that inevitable triggering event to supply relevant information.   

EDRM and the Information Management Reference Model (IMRM) shows Information Management as the first process in its separate EDRM model, when the volume of information is at its greatest.  However, EDRM ( also refers to the IMRM Model for the next 3 steps in its EDRM Model: Identification, Preservation, and Collection.

“Information Management” seems like a no-brainer, yet its meaning depends on who is using the term. This prompted the EDRM group to sponsor a project to fill out the details in the IMRM model. In fact, much of the EDRM model simply refers to IMRM, for details concerning the first four steps in the EDRM model: Information Management, Identification, Preservation, and Collection.

Identification, Preservation, and Collection

The duty to preserve information, and thus first to Identify it, begins when there is a triggering event. This can be a judicial order, discovery request, or merely knowing that a pending future legal request is likely (think BP Oil Spill).

According to one vendor I spoke with, Craig Carpenter, VP and General Counsel of Recommind, the most important stages for reducing cost and risk are Preservation, Collection, and Review. “Increasingly, however, enterprises are realizing that the more they do to effectively manage information, the easier and cheaper eDiscovery is to handle further down the process.”

The scope of the data to be preserved or disclosed depends on the subject matter of the dispute and other legal issues. If data is at all likely to be relevant to the dispute, it is discoverable.

After you’ve identified the likely data (its location, those responsible for it), your organization has a duty to preserve it from change. You may not even be sure you have it all identified, and so you must identify a team to anticipate change and have procedures in place to capture any new information that may be deemed relevant.

You can’t preserve the information if you aren’t sure where it is. Thus a critical part of your litigation plan is accurate and current knowledge of the company’s information repositories, including network drives, content repositories, and –of course—email, both current and archived. And don’t forget rich media – even voice mail can be subject to the duty to preserve.

Having identified the data in all its forms and locations and preserved it, you must then collect it.  This means having (or developing) a data collection strategy, preparing the collection plan which includes the methods you’ll use to collect it, and then executing that plan.

Notice that to make all these steps work, the IMRM shows governance surrounding the entire organization.  The model shows a unified governance plan, highlighted with benefits to each (and not just for eDiscovery): Legal (reducing risk), Records Information Management or RIM (reducing risk), IT (achieving better efficiency), and other Business areas increasing profit for the enterprise.

But what is governance, just another fancy way of saying “managing your information”?
EMC Corporation, one of the 80+ participants in the EDRM effort, created and sponsors the Council for Information Advantage, with C-level members from large organizations. Click here for more information about this initiative. These members – in EMC’s words are —“an advisory group made up of global information leaders from ‘information-advantaged’ enterprises. In its first report, released in 2009, the group defines governance as “an enterprise-wide information … policy to control how information is kept, shared, and used.” Governance assures transparency in business processes, allowing everyone to work together, as information flows through the lifecycle –paused by legal holds—from its creation through its eventual disposition. Note that the process includes an appreciation for the asset-value of secured information, key to sharing and reuse.

When you apply the IMRM model to your enterprise, as a continuously improving business process, your organization positions itself to get midway through the eDiscovery model, starting with Information Management and extending through Preservation and Collection. With the right planning, you’ll be able to identify key documents, preserve and collect them in response to an eDiscovery trigger. Managing information will also promote both more effective response to litigation events but also better day-in/day-out use of corporate information assets.

In Summary

In summary, managing enterprise information throughout the information lifecycle has benefits going way beyond responding to eDiscovery events, although it is critical for eDiscovery. Every organizational group benefits from good governance and good information management: IT (which has to back up and archive fewer files), Legal, Records Management and everyone trying to find and use information wherever it resides. While eDiscovery is the stick, gaining an information advantage over corporate knowledge assets can be the carrot.

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