A company filled with smart employees and not dissimilar from many others like it does something that I think is short-sided, risky and wasteful of limited company assets. The company lawyers think their practice is entirely prudent. Their IT folks don’t agree but they are afraid to let the lawyers know what they really think. But we will come back to that point.
I would like to say that we could chalk this different way to solve this problem to “different strokes for different folks”, but that is not what I really think. I think they are wrong. I think they are lazy and short-sided. I think they put a gun in their hand and keep loading it with bullets and don’t expect that at some point down the road somebody may get hurt.
Oh, I have still failed to tell you what I think is wrong. The company (or least the lawyers of the company) has decided, seemingly with both eyes open to keep all information they create or receive and store it away somewhere. Perhaps they still believe storage is cheap (for most companies storage volume is going up at between 20-50% per year when cost is coming down per terabyte at 5-10% which means overall, they are spending way more to store information) . Not to worry as they also believe the Tooth Fairy is an independent contract of Santa Claus. They keep all information—records and digital data debris alike. Seems like a bad business decision to me.
They take this approach to information mismanagement for 3 major reasons:
1. Lawyers feel better keeping everything because they don’t have to worry about not having something when litigation happens.
2. They don’t have to worry about providing real legal hold guidance about what needs to be preserved to employees at the time of a lawsuit.
3. The company doesn't know how to clean up all that electronic information in a legally defensible way?
Smart people can differ on things, but there is something about this debate that seems like the legal tail is wagging an expensive corporate dog around. This got me thinking that perhaps I needed to start a list of the things that make keeping everything forever really a bad idea. Thereafter, we can put that up against the lawyers list of one and see who wins. BTW-I have a pretty good idea how this story ends. So here are my top 10. You can email me (firstname.lastname@example.org) with your additions to the list.
- Storage is not cheap (per gig cost is going down but that savings is dwarfed by the growth of data)
- Keeping everything makes finding needed information more challenging
- Discovery rules require taking action upfront to know your sources of info and then in a case to find responsive information and work with the other side to deal with discovery issues upfront
- Legal hold requires action soon after notice of a lawsuit
- The “meet and confer” requires lawyers get together at the beginning of the case to discuss, among other things, discovery issues. That presupposes you know specifically what information exists and where
- Once you start keeping everything forever and don’t separate it for a lawsuit, it’s tough to apply regular retention rules to clean stuff up without the risk of destroying evidence
- Employee time is increasing just to be able to find needed information
- Information utility is inextricably linked to expeditious retrieval and access
- Companies are already running their businesses inefficiently as they can’t readily find needed business content
- Once commingling content, their record program is effectively a nullity and defensible disposition becomes much more challenging