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Don’t Get Discouraged, You Absolutely Can Grasp Information Governance
In a world awash in data, the time is right to take action and start embracing information governance.
Jason R. Baron, Law Technology News
March 31, 2014 |0 Comments
Editor’s note: This article has been updated to correct a reference to Zubulake v. UBS Warburg.
We have all seen the numbers, even if they are beyond comprehension: The most recent International Data Corp. report on Big Data estimates that between 2005 and 2020, the digital universe is expected to grow by a factor of 300—from 130 exabytes to 40,000 exabytes. That translates to 40 trillion gigabytes—more than 5,200 gigabytes for every man, woman and child on earth in 2020, a doubling of the digital universe every two years. (IDC Report, ” Big Data, Bigger Digital Shadows, and Biggest Growth in the Far East ” (Dec. 2012.) No informed person would bet that this growth rate will decline any time soon.
Confronted by this reality, it’s smart to ask hard questions about whether an organization’s spending on information governance amounts to nothing more than chasing the tail of the corporate Big Data dog. For example, what does “defensible deletion” mean if success is defined by a 50 percent reduction in shared-drive legacy data, when next year there will be 200 percent more of everything?
Should we give up, and go back to spending our time playing fantasy football on corporate networks in blissful disregard of the consequences, because technology will somehow deal with the resulting digital landfill?
Of course not. We need to embrace the Big Data world, but do so in smart, strategic ways. For example, in the short term, it may be prudent to save everything, to reduce corporate risk and leverage the emerging power of analytics. But there is still great value in deleting legacy data where possible.
This stance may strike some readers as akin to Ronald Reagan’s buildup of nuclear arms, with the aim of convincing the Soviet Union to reduce the number of warheads to zero. However, there is method to the idea of “capture everything, then apply smart filters.”
Capture technologies clearly mitigate risk in the short term: legal holds, statutes of limitations and regulatory mandates requiring preservation (think Sarbanes-Oxley, the Health Insurance Portability and Accountability Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and technology-assisted review). All fairly demand that corporations protect themselves in ways that do not depend on the benefit of hindsight.
Forward-looking policies, including email archiving over the short-to-medium term, ensure that the records will be there when someone comes requesting them, and that a corporate entity doesn’t have a Zubulake v. UBS Warburg issue where the complainant has a store of messages that have been missed in a production or are otherwise inaccessible without extraordinary efforts being undertaken to retrieve retroactively.
The U.S. Archivist’s “Managing Government Records” directive (2012) and subsequent guidance now highlight capture methods through adoption of what is known as “Capstone” policies for email. These are expected to be implemented more aggressively at the federal level in coming years. The same type of corporate policies are worth considering.
On the other hand, it is unclear that keeping everything forever is a responsible business decision. Smart policies for information governance also include regular decommissioning of obsolete, no-longer-needed systems and applications, and dealing with legacy data (including on social media and in the cloud).
Even with storage costs decreasing each year, there is no reason to keep an extra petabyte of data across networks and various repositories if it need not be retained under a legal hold, internal/external investigation, or access demand of some kind. And it has a concrete benefit: for an average Fortune 1000 company or large law firm, millions of dollars can be saved.
Consider this: Although a hard drive costs less than 1 percent of what it did 10 years ago, spending on hard drives continues to grow, and spending on the software needed to manage all this information has more than doubled in the same decade.
We do not need sophisticated analytics to figure out that 500 GB of fax server error messages have less value than a single message containing the final version of a $500 million contract. What has been missing, until recently, is a good way to tell the difference in an automated way. Of course, there is also the need to convince those trailing-edge, last users of legacy systems that they need to move on to newer platforms, once their records and data have been successfully migrated.
When evaluating the best way to capture and/or delete information, the one thing that cannot be relied upon is the ultimate user. Legal professionals are notoriously not compliant with any policy or practice that requires more than a single keystroke to implement, whether it is print to paper, or drag and drop.
When considering capture technologies, the ideal situation is an automated system that actually accomplishes the capture without relying on the user to tag or make decisions (except in the initial training of the system).
Similarly, people will provide idiosyncratic and inconsistent approaches to implementing legal holds.
Smart technologies use auto-categorization and other automated ways of classifying information to accomplish both reliable capture and defensible deletion. This should be a fundamental axiom of any information governance program being implemented on a from-this-day- forward basis.
Call me an optimist on the side of infogov policies potentially working in the era of Big Data (and smart analytics).
With a tip of the hat to Winston Churchill, who admittedly never saw an email, I’d like to rally my fellow information governance troops, to say that we shall not flag or fail in our quest to tame Big Data. We shall go on to the end, we shall fight in every institution, we shall fight wherever global interests take us on the seas and the oceans. We shall fight with growing confidence and growing strength in the cloud, we shall defend our corporate silos, whatever the cost may be. We shall fight in the corporate repositories, in the digital landfills, we shall fight in the structured data fields, and in the digital highways, we shall fight in the data mountains, and we shall never surrender! And we will never, ever, give up!
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