By Conrad J. Jacoby, Esq.

Miscommunication is a constant problem within the field of electronic discovery. Legal practitioners, e-discovery service bureaus and corporate IT staff each have distinct and long-standing professional vocabularies that use different terms to describe similar information repositories and data management procedures.

Worse yet, a common word like “backup” may at times have different meanings within each of these professional spheres, causing further confusion. In an attempt to create a common language to discuss electronic discovery issues, the Electronic Discovery Reference Model Project (EDRM) has released a number of white papers and work product that discuss e-discovery practice in neutral, universal terms.

The most visible result of EDRM may be its ubiquitous e-discovery graphic, but the project’s substantive glossaries and papers have indeed provided common vocabulary for individuals and organizations to discuss an e-discovery project throughout its life cycle.

“Information Management,” the first stage in the Reference Model, is where miscommunication can cause significant problems. Generally speaking, information management involves the development of systems to control how an organization’s written work product and corporate files are stored—and when they should be discarded.

Applied to electronically stored information (ESI), information management is expected to:

• Control where files are stored on an organization’s computers
• Determine whether users may make personal copies of this information
• Reveal whether earlier versions of corporate documents are saved as drafts
• Control how long e-mail messages are retained
• Manage myriad other functions associated with creating and deleting information relating to the organization.

An incomplete understanding of ESI repositories within an organization can easily introduce flaws into downstream tasks associated with ESI preservation and collection, just as a poor foundation will cause an otherwise well-constructed house to fall into pieces when it is stressed. On the other hand, when analysis is required to implement defensible legal holds, a solid grasp of electronic data repositories within an organization speeds and simplifies the process.

Just as important, reasonable information management policies and procedures can become critical evidence when describing (or defending) the affirmative steps that were taken to identify factual evidence that could be relevant within a legal dispute.

Information management is a deliberately open-ended term designed to include work done by multiple professional disciplines. It includes data mapping conducted by IT and consultants, as well as litigation preparedness audits conducted by consultants or law firms.

But information management encompasses much more than simple roadmaps of data silos. It covers document retention and disaster recovery policies, as well as basic network access rights. The information management team must be able to understand the organization’s key missions and legal obligations, applying to that knowledge its expertise in records management technology. Otherwise, it would be incapable of developing and maintaining policies and procedures that control the duplication and distribution of the organization’s hardcopy and electronic information over its life span.

Leveraging Information Management in Electronic Discovery
Information management strategies are most successful when an organization is able to proactively develop and implement them without pressure from specific litigation needs. For many practitioners, however, their first involvement with an organization’s information management systems is likely to come in the context of a specific legal dispute that requires relevant fact evidence to be preserved and actively managed.

Every organization has some systems in place for managing its information. These may be excellent or mediocre, but the policies that govern this information should be some of the first evidence that a legal team collects. Understanding existing information management policies and procedures will help the legal team quickly get a sense of what potentially relevant evidence may be readily available—and what may not. Increasingly, it is crucial to know early on whether relevant evidence may have been discarded pursuant to policy, or whether evidence may exist only in difficult to access disaster recovery systems. The policies also provide the basis for crucial interview questions with fact witnesses or IT staff being asked to enforce a legal hold. It’s vital to understand—early on—whether information management policies are actually being followed on a day-to-day basis.

For clients that have relatively weak information management policies, a specific litigation matter may also be an opportunity to improve and expand these policies. The threat of dire legal consequences forces litigation-specific information to be treated with great care. The defensible policies created to manage information subject to legal hold, however, can sometimes serve an additional business function as a pilot project for non-litigation information management. Over time, these same policies can be applied to an ever larger amount of an organization’s documents and corporate knowledge, planting seeds that may grow into a strong corporate information management system.

About the Author
Conrad Jacoby is the founder of efficientEDD, a consultancy specializing in electronic discovery and litigation information management issues. A seasoned litigator as well as a technology consultant, Mr. Jacoby writes and speaks extensively on electronic discovery issues. He received his undergraduate degree, magna cum laude, from Yale University and received his law degree, cum laude, from the Georgetown University Law Center. He can be reached at [1] conrad@efficientEDD.com.