Information Governance – why lawyers should take the lead

By Andrew Haslam

Every February in New York there is a technology show of the latest innovations and trends in Legal IT. This year, one of the main themes was that "2014 is the year of Information Governance” (or in colloquial terms Big Data).

Information Governance (IG) is the newer, shinier version of what used to be called Records Information Management (RIM). Both focus on managing the risks posed by organisation information flows. The legal requirement is to ensure that organisations are complying with all the various rules and regulations about that data.

In the days before electronic information, this was a fairly “nerdy” subject that revolved around archiving policies and document retrieval and disposal. That has changed with the explosive growth of email and other forms of Electronically Stored Information (ESI). The current problem can be simplified into the observation that "we have been cursed with cheap electronic storage for the past 15 years and are paying the price". By this I mean, absent any clear direction, or tools to help them, many businesses have adopted the non-policy of “just keeping everything”.

The problem with this approach is that it comes back to haunt you when there is a need to examine the ESI, be it for disclosure purposes, a freedom of information request, a HR query, or a regulatory investigation. Then, having multiple copies of similar documents, with ESI scattered across the whole of the firm's IT infrastructure becomes a very expensive situation to manage. Remember, it was emails and their mismanagement that caused the News of the World to be closed down, that's a very powerful warning that corporate counsel and management boards are waking up to.

One of the first things litigation professionals have to do when preparing for eDisclosure is collect and then process a large volume of unstructured data (mainly email and attachments). This is known as Early Case/Data Assessment (ECA). The tools for these exercises are designed to tackle large volumes of data, and spotlight the material that might be of use with fast and powerful search functions. They also provide other capabilities, like the ability to group together similar documents, and create automated processes for auditing the results.

Tools are available that can examine the text of the documents and by using linguistic analysis; cluster related documents and concepts, track conversation groups, identify “hot topics” (in litigation terms this is often referred to as the smoking gun). It is this "automatic" grouping of information, coupled with powerful search capabilities that have such potential for Information Governance. As one CIO said "I can use these tools to find every copy (and near duplicate) of a five-year-old Word document, and then deal with them according to an agreed policy". That's a very attractive proposition for anyone involved in risk management.

We are starting to recover from the financial re-set of 2008, and management boards are finally authorising funds to address these issues. Up until now any proposition that started with "spend X to save Y" was doomed. Not anymore. Companies have been following a strategy of gambling they won't need to tame Big Data, now they can afford to and with recent high profile litigation, they know they need to.

Finally. The tools are excellent, but you need advice on how to deploy them and documented policies to govern their use. Who is better placed to offer legal advice on IG than law firms who have all the expertise on data collection, litigation and compliance on tap? It’s a great opportunity for innovative firms; if law firms don’t grasp it, be sure other professional services suppliers will.

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