Anticipation of Litigation Advisor
Information Governance: The Key to Surviving and Limiting Costs in E-Discovery
October 31, 2019
By: Briana Cunningham Breault
“A lack of planning on your part does not necessitate an emergency on mine.” You may have heard that saying before. Unfortunately, it simply is not true in the world of e-discovery. The failure to plan on the front end often creates emergencies of all kinds for a company. If a company’s data is not properly managed and organized, a request for production can become needlessly chaotic, expensive, time-consuming, and exhausting to respond to. To prevent these emergencies, companies adopt information governance policies.
Information governance is a relatively new trend. Leading research and advisory company, Gartner, defines information governance as “the specification of decision rights and an accountability framework to ensure appropriate behavior in the valuation, creation, storage, use, archiving and deletion of information.”[1] Furthermore, information governance “includes the processes, roles and policies, standards, and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals.”
Information governance not only reduces costs associated with discovery, but it can also help parties avoid unnecessary sanctions. For example, in a California case, a defendant was sanctioned $74,809 for producing documents in “complete disorder.”[2] While the defendant complied with the discovery requests in producing approximately 60,000 relevant documents, the court held that the disordered condition of the documents justified sanctions because the plaintiff incurred substantial costs to organize the documents.[3] The court found that the defendant “employ[ed] a discovery method in such a manner as to cause undue burden and expense to plaintiffs.”[4] The court reasoned that because the defendant was responsible for the disordered state of the documents, sanctions were appropriate.[5]
The California case discussed above underscores the importance of implementing an information governance model that effectively organizes information. Organization of information can drastically reduce the expense of reviewing discovery in litigation, particularly where a defendant is required to pay the plaintiff’s legal fees and costs. Organization can also eliminate outdated and obsolete data, which is important not only to de-bulk the dataset and reduce litigation expenses, but because it can avoid confusion in litigation.
Like corporate governance, information governance policies must be embraced by companies and enforced as mandatory to be successful. An effective information governance model requires: (1) a legal department, (2) risk management, (3) compliance, (4) records management, (5) information technology, and (6) information security. While no one model fits every company’s needs, experts at InfoGov Basics have outlined some best practices to include in implementing an effective information governance model.[6]
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An executive-level sponsor, such as a CIO or General Counsel, is needed to ensure that the policy is adhered to.
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A multi-disciplinary committee should be established to roll out the program gradually.
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The IT department should be involved to ensure that the right technology is selected to meet the needs of the organization.
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Policies should be easy to understand, well documented, and defensible.
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Policies should be uniformly applied across locations.
Implementing an information governance model is not quick or easy. It generally requires anywhere from three to five years to take full effect, depending on the size of the company. For this reason, it is important for companies to begin implementing information governance now. Once a litigation hold or document requests are issued, it becomes much more difficult to implement information governance policies. For more information on how to implement effective information governance models and additional resources, consider visiting InfoGov Basics at https://www.infogovbasics.com/.
Author: Briana Cunningham Breault, Associate, Business Law
© October 2019 Jackson Kelly PLLC
[1] https://www.gartner.com/en/information-technology/glossary/information-governance
[2] Kayne v. The Grande Holdings Ltd., 198 Cal. App. 4th 1470, 130 Cal. Rptr. 3d 751, (2011).
[3] Id. at 1476, 755.
[4] Id.
[5] Id.
[6] https://www.infogovbasics.com/best-practices/