Legal Hold 101 – Data Retention and Destruction

Every gambler knows That the secret to survivin’ Is knowin’ what to throw away And knowin’ what to keep ‘Cause every hand’s a winner And every hand’s a loser And the best that you can hope for is to die In your sleep The Gambler lyrics © Sony/ATV Music Publishing LLC Some of the more frequent questions asked of eDiscovery attorneys when teaming with IT professionals on archiving and other retention policy projects, relate to the timing, scope and especially the release of legal holds.  Misconceptions about “Legal Hold” abound, many of them (unfortunately) coming from litigation attorneys stuck in the paper document past or those who do not understand data systems architecture.  One common source of over-broad Legal Hold retention is the misapprehension of the risk of severe judicial sanctions for the destruction (aka spoliation) of evidence.  Too many attorneys take what they consider to be the safe route and continue to advise enterprises to keep too much for too long.  As Kenny Rogers’ Grammy award-winning song reminds us, risk can cut both ways.  Not only does an overbroad legal hold increase the cost of maintenance and infrastructure, it increases the cost of legal review of held documents, and …

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Boards and C-Level Executives Are Sailing in Dangerous Waters

Great White Shark

In 2005 the ABA Business Law Section published a short book titled, Sailing in Dangerous Waters: A Director’s Guide to Data Governance.  It warned in stark terms: Those Directors who defer or delegate to specialized personnel their understanding and command of data governance will be at increasing risk of incurring personal liability for failing to fulfill their fiduciary duty of care to ensure that their companies comply with rapidly emerging legal requirements concerning deficiencies in data governance.[i] To say that information is an asset to business enterprises is to recognize the obvious.  Certain intellectual property such as trade secrets and customer lists are universally considered to be assets and deserving of protection.  But, as enterprises have shifted to digital systems where work-flows, communications, collaboration systems, data analytics and other metrics now condition and drive business decisions, the value and integrity of these systems has become ever more fraught with risk.  Consider that the Ashley Madison hacking uncovered email correspondence between executives and legal counsel.  While Coca Cola might have been able to lock away a few copies of its secret formula in a steel safe a generation ago, today’s information assets, by their nature, must be widely distributed and available …

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Information Governance – A Principled Framework

Gartner defines Information Governance as an accountability framework that includes the processes, roles, standards, and metrics that ensure the effective and efficient use of information in enabling an organization to reach its goals.  One of the core requirements of a legally defensible Information Governance program is a reasonable and consistently applied records & information management (RIM) system.  Accountability and defensibility hinge on the ability of an organization to govern its information in all formats and on all media, and to ensure or prove that it is compliant with all legal requirements. Building an information governance framework is by necessity a cross-disciplinary effort.  In a world where virtually all information is created in digital form, IT departments are commonly given the lead.  However, even the most advanced and elegant technical solutions must be guided by at least two other disciplines: legal, and records management.  Especially in the wake of hacking scandals like Sony Pictures, the importance of Information Governance is increasingly recognized as a board level and C-Level concern.  Information is an asset and a source of risk, it must be treated with great care. Information is an asset and a source of risk, it must be treated with great care. …

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