Yet another 2011 ILTA Conference chance meeting lead to an interesting Q&A with Jim McGann VP of Information Discovery at Index Engines. In my prior role at Fulbright, I worked with the e-discovery practice group on developing ideas for building client relationships. As part of this we offered a "Litigation Readiness Audit" to help clients assess their preparedness for e-discovery requests. Not many bit on this offering. The best guess for why - was that clients didn't have budgets for preparing for getting sued - but only for when they actually were sued. So the Q&A with Jim was a nice opportunity to see if things have changed. Read for yourself to get the full update.
Q&A with Jim McGann: Are Corporations Ready for Litigation Readiness?
Toby Brown: To what extent do you think the corporate world is finally ready for litigation readiness, after so much lip service about it over the past several years?
Jim McGann: Legal issues might force the corporate world to become litigation ready even if they aren’t now. The courts are not just asking anymore – they are insisting that data be retrieved for litigation. The technology now exists to make this easier and cheaper than it has been in the past, and today’s corporations must be informed and ready to use it.
Toby: If you do see a shift occurring toward greater litigation readiness, what have been the key drivers/reasons that are behind this?
Jim: Yes, I have seen a shift occurring towards greater litigation readiness. The key drivers are that courts aren’t accepting the burden excuse anymore that this data can’t be found or it’s too costly to retrieve. They are insisting that corporations adhere to these data requests or be heavily penalized. Recent cautionary tale court cases are prompting corporations take a second look at where their data is, and how to be proactive so they have the data needed and aren’t keeping data that could be a big liability in the future.
Toby: What are the benefits of taking a proactive approach to litigation readiness and/or information governance?
Jim: There is a lot of stored data lying around unnecessarily that could pose significant legal liabilities for companies. Knowing what you have, where it is and avoiding the “save everything” policy have all become critical to corporations. Knowing all this before there is an issue and having data retention policies in place can eliminate painful litigation issues in the future.
Toby: What are some steps that corporations can take now to make themselves litigation ready, and which department(s) should be in charge of overseeing the process?
Jim: Both IT and the legal department must be involved in this process; they must work hand in hand. Legal must create the policies, they know what data needs to be saved and for how long. They need to set the policy for IT to comply with, and of course, IT needs to actually comply with the policy.
Policies must not only apply to current data on corporate networks, but legacy data as well. Typically legacy data represents significantly more volume than the current data and it is frequently neglected because it is out of sight, out of mind. Legacy data is hidden away on backup tapes used by IT for disaster recovery purposes. Companies have thousands of these tapes that can become discoverable and represent a liability for the organization. When developing a solid information governance strategy, everything has to be looked at.
Toby: What will happen to companies that miss the boat and don’t take these steps?
Jim: Companies that don’t take a proactive approach to litigation readiness will always be putting out fires, having to go through Terabytes of data to find a few critical pieces needed for litigation, usually with not enough time to find them. There are no excuses for the courts anymore, they want the data and they want it right away. This is not easy to do if you haven’t taken the steps and started managing your data.
Toby: How are law firms getting involved in this process and what is their responsibility to their clients from a litigation readiness standpoint?
Jim: Law firms are thinking more proactively and are advising their clients on litigation readiness. After many reactive “fire drills,” law firms see the pain and exposure caused by improper management of corporate records. As a result, they are advising their clients to become litigation ready and implement proper information governance strategies.
Toby: Jim - thank you for participating and for your contribution to the 3 Geeks!