Information governance (IG) in the modern day legal landscape addresses multiple functions from cyber threats, to compliance, to interdepartmental communication to document retention to e-discovery. Affecting businesses across the legal, compliance and IT realms, the ideal IG framework will insert processes and procedures into place that will allow law firms and businesses to consistently manage and asses the flow of information. Browning Marean, co-chair of the Electronic Discovery Readiness and Response Group at DLA Piper and speaker at the ARMA International 2013 Conference and Expo, offers his expertise on law firm IG and why data can and should be controlled in the legal field.

Q: What is the impact an IG framework can have on a law firm and business?

A: The impact of IG on a business in momentous. Legislation like the Sarbanes–Oxley Act of 2002 requires that businesses have controls in place.  Law firms must keep up with the ever-increasing number of compliance regulations for their clients. In addition, the average Fortune 500 companies have 125 lawsuits at any given point. If law firms and compliance departments have control of the information, they will know where to look and be able to preserve the information during discovery. IG can therefore also serve as an organizational tool during litigation.

Q: How would you describe the relationship among technology, the law & IG?

A: There is a complicated relationship among the three entities. I believe that the computer revolution yields two classes of people, both the foot soldiers and the victims. It is the same with the practice of law-- technology can cause disruption but if attorneys take advantage of technology and use it to guide their IG, they will flourish.  

Q: Can you cover the top risk associated with governance gaps in litigation and e-discovery?

A:In a lawsuit, parties must produce documents during discovery. When litigation is reasonably anticipated parties will have to put a legal hold on discovery documents in electronic form, also known as e-data. If parties are unable to do so or unable to preserve the documents, they will suffer the consequences, including losing the case outright and monetary sanctions and adverse interference instructions from the courts. In that way, IG can mitigate the problems associated with the identification, preservation, collection and production of e-data.

Q: What would be some of the solutions you would recommend for this risk?

A: The amount of data that is available will be multiplied by 50 by the year 2020. The only way to accommodate all of that information is to have proper practices and policies in place. I believe law firms and business should prepare an “IT readiness program.” Organizations must look at themselves from the top-down to see what resources are available to help at each level. There is a great checklist from the Department of Justice (DOJ) that covers may aspects of how law firms and businesses can ensure that there their discovery material will remain intact, from document management systems to disaster recovery backup. In addition, I recommend that law firms and businesses maintain a record retention policy.

Q: E-discovery is one of the hot topics in the legal world. Why do you think it has become so widely covered and debated?

A: About 95% of all data is viewed in electronic form.  This means that in order to prove your side in a lawsuit, we will have to see where the evidence is based, which is usually in some kind of electronic format. We are going from an analogue world to a digital world so we must create and preserve electronically stored information (ESI) to evaluate the evidence. The pervasiveness of e-discovery has resulted in several additions to the Federal Rules of Civil Procedure as well as state laws.

Q: Can you provide a background on the evolution of e-discovery?

A: In the modern era, a series of cases in the early 2000s from federal courts established the beginning of modern e-discovery litigation.  In particular, Zubulake v. UBS Warburg LLC from the United States District Court for the Southern District of New York paved the way. Judge Shira Scheindlin presided over the case and made several ruling effectively establishing the duty of businesses and their counsel to preserve documents and refrain from practices that may result in the destruction of documents.. Through an effective IG framework, law firms and compliance departments will be able to keep up with ESI in litigation and e-discovery.

Interview by S. Merchant