Everything you wanted to know about eDiscovery, but were afraid to ask
Information Governance pertains to any program or system designed to get your electronic house in order for the purposes of mitigating risk and cost, and making wiser business decisions. Information governance is not a litigation tactic, but a program that should be in place from the initial creation of ESI through its final disposition. While it sounds like a straightforward program, there are many complications that make it difficult to actually make an information governance plan work in the face of litigation.
It is a fact of modern life in our digital world that companies generally have a poor understanding of the nature, quantity and form of the electronically stored information (ESI) in their possession. Information governance is any set of policies, procedures, processes, and controls designed to manage an organization’s data in order to mitigate the risk of future regulatory, legal, and other risks associated with keeping data for long periods of time. More recently, information governance guidance has focused on how it can provide business intelligence such that corporate teams can be in a better position to make bottom line-driven decisions.
"Information governance is any set of policies, procedures, processes, and controls designed to manage an organization’s data in order to mitigate the risk of future regulatory, legal, and other risks."
The Gartner consulting firm defines information governance as “the specification of decision rights and an accountability framework to encourage desirable behavior 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 organization to achieve its goals.”
In 2002, Arthur Andersen partner David Duncan pled guilty to destruction of records related to Enron, leading to a criminal indictment of his firm. In that case, Duncan led an effort to shred documents even after he had learned of a pending federal investigation and received warnings that destroying documents violated the firm’s policies.
Despite that abject lesson in the downside of data destruction in the face of litigation, spoliation continues to happen.
If a company or organization fails to suspend an information governance program in the face of a litigation hold notice, it can be sanctioned or penalized in court.
If a party fails to take reasonable steps to preserve information it was under an obligation to preserve, the severity of sanctions can be drastically increased—leading even to the imposition of harsh sanctions such as adverse inferences, adverse jury instructions, and dismissal or default judgment.
If a party fails to defensibly manage its data before litigation, it can face excessive burdens around collecting, reviewing, and producing that data when litigation arises.