Thursday, May 9, 2013

Hanging with my Legal Peeps and Giving out Some Well Deserved Tough Love



“A big shout out to all the lawyers in the hizouse.” “Give it up for all the attorneys”. “‘Hey lawyers, when I say ‘Ob’ you say ‘structionist’, ‘OB’.” “I can’t hear you.”   Ok, when I say “your IT department thinks you’re THE problem,” you say “really?”.   “Your IT department thinks you’re the problem”.  And a painful and profound silence befalls the harried hallowed hallways of your corporate law department.  What if your thinking is wrong.   What if you believe your course of action is prudent but in fact it’s dead wrong.  It’s not as though you set out to tell your whole company that from today forward that no information will ever be destroyed.  But for many companies that is the precise situation in which they find themselves. Maybe it has nothing to do with you and your legal eagle pals, but if experience is any guide that is probably not the truth. If you are an in-house litigator maybe your thinking is misguided because you think tactically at the lawsuit level not strategically for the enterprise. Or perhaps, it’s because you are only concerned about the lawsuit you face today not what happens when you say to the IT department stop destroying anything even if policy otherwise allows its destruction. Maybe it’s because from your vantage point you are always looking backward at evidence created in the past not forward at business efficacy through information accessibility. But I think you are likely, at least, part of the problem. 

So I have devised “Randy’s Twelve Step Program To Help Lawyers Own and Combat Information Hoarding” (herein after referred to as “RTSPTHLOACIH”). Maybe it will help you and your law department start to rethink your approach to litigation response and maybe help build a better relationship with your IT folks—who are desperate for some of your lawyer’ brilliance and legal love, not to mention, a simple answer to the 15 plus questions they have asked over the last few months, for which they are still patiently waiting a real response. BTW-“it depends” is not a useful answer for your IT folks. To them it means “the lazy lawyers are a pain in my server”.

RTSPTHLOACIH (also referred to as “Randy’s Twelve Step Program To Help Lawyers Own and Combat Information Hoarding”)

1.            Storage is not cheap—unit cost may be going down by a few percent per terabyte but because your organization’s information footprint is likely growing at 20—50% per year, you are spending way more to store information.

2.  “Information” is broader than “records” and “evidence” may include records and non-records provided it’s potentially relevant. So by retaining all information, your organization is tacitly agreeing to manage all information as though it’s a bona fide company record, which carries with it huge responsibility.  Getting rid of non-records allows your company to save big bucks and be way more efficient. 

3.   Records Retention rules allow and REQUIRE that records are properly disposed at the end of their useful life. But you stopped that process from happening when you countenanced the “keep everything” approach to litigation response or failed to promote the disposition of electronic content pursuant to your Records Retention rules.

4. Put another way, if you allowed your company to keep everything and no longer purge records when their period of retention is up, then you are responsible for violating your own Record Retention rules by failing to follow them (absent a court order to keep everything which is rare).

5.  Litigation costs are soaring in part because “keep everything” makes finding the relevant needle in the irrelevant haystack that much more complex, burdensome and expensive. Knock it off.
6.  Many large companies are now spending tens into the hundreds of millions of dollars per year just to store  information and thinking search is omnipotent and storage is free provides a fallacious basis for failing to clean up the digital data debris. 

7.   Your organization can’t keep all information forever—your business people spend too much time trying to find needed content and more often now they can’t find it at all or its taking way too long. You think the CEO would opt for business inefficiency so that you can sleep well tonight after you represent  to a court “nothing could have been destroyed, because we keep everything”.  (BTW-last year the MER Conference I heard an enlightened Federal Court judge admonish those who were over-retaining and over-preserving as he extolled the virtues of shorter and more uniformly applied retention rules.)  
 
8.    Litigation response requires taking action up front and segregating responsive information from the rest of the company information, otherwise you can’t apply retention rules and dispose of outdated information downstream as everything is commingled. A more proactive approach to litigation response may cost short term money but there will be long terms gains. (don’t believe me, email me (rkahn@kahnconsultinginc.com and I will show you the business case). If everything is commingled and not flagged for preservation, getting rid of outdated content is all but impossible without huge expense.

9.   Your IT department needs very specific help to clean up the past information piles otherwise their systems will break and budgets will be decimated retaining loads of outdated information unnecessarily. You can help save your company millions and help develop a new Information Governance construct. You want some real IT (maybe even CEO and CFO) love, help Defensibly Dispose info crud.

10.  Employees can’t do the heavy lifting of records retention and litigation preservation any more as there is too much stuff to go through.  Harnessing technology to better deal with discovery will be essential.  Maybe you can use some of your budget to fund an IT technology purchase that both the law department and IT can benefit from and you can garner even more Nerd Love.

11.  Technology is way better at managing information than people. Evolve your old school paradigm. Employees don’t have time to search and classify and if they did, they would do incredibly poorly at the task. Evolve or wither.

12. Courts have recognized that technology should be used to help manage information.  Become a Change Agent and get on the Clue Bus.

When I say “I” you say “T”.  When I say “Legal dogs” you say “are in the IT Hizouse”.  And as the sun rises over another “faster, better and cheaper” company,  you can hear a youthful exuberance of a member of the IT department say “put your pocket protectors down fellas, so I can introduce you IT nerdlets to our legal homie”.  15 minutes later…the CFO gives you the business process improvement award for fixing litigation response, cutting e-discovery costs, helping the CIO save millions on the burgeoning storage budget, cutting customer response time, and bringing about world peace.  And with plenty of time to redline a contract and eat a pound of flesh before you go to lunch, you realize you are truly valuable.  BOOM.