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As many records managers can attest, information governance processes are vital to e-discovery. The process of collecting and preparing electronic data for litigation is right up a records manager's alley -- until resource restrictions and overzealous lawyers get in the way.
So how do records managers ensure they remain valuable to an e-discovery strategy? To start, it's important for them to use information governance skills to their advantage.
"Our goal is to have a repeatable process -- just like in records management, you have a documented, repeatable process that you can defend," said Jane Connerton, corporate records manager at The Procter & Gamble Co., during a presentation at the ARMA Conference and Expo in Chicago last month. "That way, when you go into a case, the only thing you are looking for are the exceptions."
We help the legal team at any given time identify what's out there, and what's possibly in scope for a particular case.
Jane Connerton, corporate records manager, The Procter & Gamble Co.
Connerton was joined by Patrick Cunningham, senior director of information governance at Motorola Solutions, Inc., for a presentation titled "The records manager's role in -discovery: Lessons learned." Their discussion revolved around how records managers contribute to the e-discovery process, as well as common impediments to successful e-discovery.
Conducting e-discovery in-house does provide huge benefits for most companies, Cunningham said, mostly due to the built-in familiarity with networks, chains of command and users.
"Your team understands the environment, your team understands who the users are, who the owners of these systems are, who the right IT people are to go to [for] answers," Cunningham said. "You don't have to chase around the entire company looking for the person who administers the email system."
Connerton noted that records managers know where certain information is stored, who owns that information and how long it takes to access it. This information, along with the use of "data maps" to determine what format records are in and how difficult the information will be to obtain, is all vital to the e-discovery process, she said.
"We help the legal team at any given time [to] identify what's out there, and what's possibly in scope for a particular case," Connerton said. "We help them do the preservation notice so we know what's out there -- that also allows us to know what cases are going on so [that] as we do our retention schedule, we have the exceptions for the legal holds in place."
Overcoming e-discovery pitfalls, resource restrictions
One important pitfall to avoid with the relationship between records management and litigation is the potential for bias during a legal discovery case. Because the two teams often work closely together in the e-discovery process, it creates trust -- sometimes too much -- between the two.
Records managers must be careful to avoid steering outside counsel away from certain information, causing them to think it is not pertinent to an e-discovery case when it really is, Cunningham said.
"You get into a bias situation, and there can be a real problem if the company is basically leading outside counsel away from what could potentially be dangerous grounds in the matter," Cunningham said. "[General counsel] have an obligation to turn over all the rocks."
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Another big obstacle for records managers is resource restrictions: Many companies have budgeting concerns, and moves such as hiring freezes can influence records management and e-discovery processes.
It's especially difficult to justify costs to management when storage and server upgrades to handle information governance can get very pricey, Cunningham said.
"In this day in age, you're just going to have what you need to get the work done, and you're going to have to deal with it," Cunningham said. "You're either going to have to rent somebody or delay the work until it can be done."
To overcome these resource restrictions, you can try pulling double duty and using e-discovery and records management tactics in other areas. For example, organizations can incorporate the same infrastructure and processes used for e-discovery into their information security strategy, Cunningham said.
Budgeting strategy for e-discovery efforts is important as well. Small and medium-sized business may choose to concentrate funds in the initial control of your records and information.
"The more control you have up there, the fewer tools and less robust your e-discovery collection process has to be," Connerton said.
It's important to consider the size of your company and its e-discovery needs, then determine the appropriate scale of your e-discovery efforts, Connerton added. In other words, avoid spending $1,000,000 to settle a $100,000 case.
"We're a big company, so we have been able to convince people to do [e-discovery] on a very large scale and to spend the money to do that," Connerton said. "It's not necessary in every organization, and there are tools out there that are much more affordable for the medium-sized company -- you just have to find that balance."