VitAL MANAGEMENT
The rapid increase in the amount of electronic data has intensified a focus on establishing good ‘information governance’ within businesses. Gartner defines information governance as ‘the specification of decision rights and an accountability framework to encourage desirable behaviour in the valuation, creation, storage, use, archival and deletion of information. It includes the processes, roles, standards and metrics that ensure the effective and efficient use of information in enabling an organisation to achieve its goals.’ So, while companies stand to benefit from increased visibility across risk and improved business productivity, good information governance also sees to issues of compliance, especially if there is a threat of legal proceedings looming near. In litigation, the race to find the relevant facts can shape an entire case strategy, but data backups were created for disaster recovery purposes. Archives were created to store large volumes of email and data. Neither was designed for indexing or the search for information.
The problem is not too big For many businesses, the perceived obstacle to achieving good information governance is that the problem appears too big. When presented with legal proceedings, some businesses have even been known to accept out-of-court settlements or fines because it would cost less than finding and producing relevant information to prove their case. Their data stores are so large and diverse it is easier to buy more storage and turn a blind eye than create an information governance culture and programme. However, avoidance will only create bigger problems in the long run and businesses are increasingly being held to account for their data management. Ignoring these requirements can be costly, as the defendants of Earles v Barclays Bank Plc (2009) found out to their dismay. Despite successfully defending their case, the defendants were handed a large financial penalty because the judge ruled that Barclays failed to disclose documents directly relevant to the central issue. That it was too difficult to comply with the document retention requirement and to always be in a state of litigation-readiness, was deemed not excuse enough. This case highlights that there is a growing judicial awareness in the UK (and indeed, awareness outside the legal profession)
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that the technology exists to both manage the in-house storage and indexing issues of information governance, as well as the disclosure exercise.
At all times, businesses are expected to
be able to confirm what information they retain, how long it is retained for, where it is stored and who has access to it. When it comes to legal proceedings, they should also be able to produce all the relevant data requested within a reasonable amount of time and be able to commit to a time-frame for doing so from the out-set.
Transforming data into information
The means to adequately address the issue exist – it is a combination of people, processes and technology. Smart companies should establish an effective data management plan, including document retention policies and a litigation response plan. Employees beyond the IT and legal departments need to be made aware of these policies and the means must exist to police them. Technology currently available on the market also supports businesses to gain control over the massive amounts of unstructured information and communication within every business division or, in the case of multinational corporations, every office. Every piece of communication, and all the relevant attachments, can be automatically and regularly indexed to be available for instant search when required for litigation, compliance or internal investigations. Furthermore, to go back to the possibility of legal proceedings, technology can also be set up to identify suspicious content and bring it to the attention of relevant executives so they can follow up and find further facts. Email monitoring technologies have been around for years, but the latest information governance technology provides an opportunity for companies to dig deeper. This technology can identify anomalies, perform sophisticated searches and escalate examples of communication to the appropriate levels when information may pose a risk to an organisation’s reputation and authority. In short, companies should be better at managing the information they store, and do so before the data spirals into out of control into messy and potentially harmful time bombs. VitAL
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Smart companies should establish an effective data management plan, including document retention policies and a litigation response plan. Employees beyond the IT and legal departments need to be made aware of these policies and the means must exist to police them.
March / April 2012 : VitAL 33
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