Air, Water, Food — Corporate Priorities for Discovery Challenges

by Deidre Paknad

The new Federal Rules of Civil Procedure require new disclosures, consideration, and preparation from corporations. Just what consideration and what preparation is the subject of debate and angst for many companies — how should new obligations be communicated internally, what kinds of processes are needed and when, how will we be tested, by whom and when, and how can we move from a reactive to proactive stance in the face of these obligations?

It’s hard to know where to start but Abraham Mazlow’s ‘Hierarchy of Needs’ provides an excellent — and humorous — paradigm for planning and prioritizing!

More Disclosure, Short Timeline
The disclosure requirements have the most significant impact on corporations:

• Discuss retention practices (not policy aspirations) with your adversary
• Discuss preservation protocols and the collection approach with your adversary
• Identify and preserve sources of potentially relevant data, even if they are inaccessible or remote

Given the level of disclosure, it is quite likely that companies will find themselves preserving and producing more data than before. They are also likely to find their holds process challenged more often and to find that their current retention programs are the weak flank in this arena (both because they allow information to accumulate voluminously without rhyme or reason and because there are gaps between the policy and practice).

Today, in-house counsel may have no idea what the sources of data are, how the retention programs really work — or don’t work — and who can provide expertise on the content and the systems across their business.

Prioritized Plan using Mazlow’s Hierarchy
Mazlow, noted behavioral psychologist and researcher of the mid-20th century, famously characterized basic human needs and theorized that these needs had to be met before people could aspire to or satisfy higher order aspirations, goals and “self actualization”. The Air>Water>Food hierarchy is Mazlow’s — it’s a simple, but unarguable human priority list. To borrow his theory and apply it to the corporate challenges under the Federal Rules:

Air = Robust Legal Holds Process
A good legal holds process is the first line of defense and the minimum level of action and competency to survive the challenge. Without a consistent, robust, and reliable legal holds and preservation process, not much else matters.

To institute to a rigorous holds process, consider the pressure points in your environment and how you will demonstrate its effectiveness when challenged. Overlay those on the generally accepted legal holds standard embodied in the Zubulake Checklist and it quickly becomes apparent that achieving the requisite process integrity goals requires efficiency and automation.

Water = Map of the Data Sources
The map of data sources quickly follows as a critical life support system. It must be accurate, accessible, and sustained over time. The rapid disclosure timelines and the costs of under-stating the sources make an accurate data map hard to live without.

Your map should consider both custody and stewardship. People and systems can have custody, but different people may be needed to understand the content and the container — rarely can one person give you full perspective on both. Equally important is that the map will be in perpetual flux as the business presses forward in service to shareholders; the approach you take has to be a living one where those with the specific knowledge can easily share it with you to sustain accuracy.

Food = Enterprise Retention Framework
You can live a long time on water alone, but not very well! To function, your organization will need an enterprise retention framework that identifies the myriad classes of information, the business units and departments that have each class, the retention process in each business unit, and the people most knowledgeable about the information. Because all of these elements change all of the time, the framework should encompass current facts and be elastic enough to be readily tuned as things change.

You will need to move beyond the records model where your retention schedule suits your paper warehouse process or provider to one that suits your business — as complex and diverse as that may be. Establish a corporate vocabulary and controls, and then leverage that for a shared language across the business. However, it must be easy for business groups to define their procedures, identify how they store information, and identify who is knowledgeable about their processes in terms that are relevant to and reflective of their unique operations.

When it occurred to me that the Mazlow needs analysis was such an apt paradigm, I did a bit more research and found that there were several more relevant elements in his hierarchy of basic human needs: sleep and sex! They, too, lend themselves well to this topic:

Sleep = Closed Loop between Holds, Data Sources, and Retention Rules
This is a need that most litigators can relate to! A worst case scenario is a holds process that is disjointed with the systems and people that manage them and a retention program that is in conflict with both. These three elements must work in perfect synchronization in order to avoid sleepless nights.

Retention and preservation have the same central actors: information, owners of information, and storage locations of information. The overarching goal of retention programs is to retain only what is needed, nothing more and nothing less. The primary goal of preservation is to preserve and produce only what you need to, nothing more and nothing less. You can’t meet one goal if you aren’t meeting the other.

Sex = Lower Litigation and Operating Costs
Finally a way to view e-discovery as a sexy topic! If your retention program works as a guide for managing data in the various sources and systems, if the company saves less data as a matter of course, and if your holds process is precise and reliable, you will spend less money storing information with no business value and far less money preserving it and producing it. This will not only feel good, but will free you to move on to higher order thoughts and engagements.

Now the Self Actualization
Few companies have yet satisfied the basic needs, but those that have enjoyed dramatic success. One of the world’s largest financial institutions saved over $50 million — and expects to save 3 times that in the next few years — with an automated legal holds process, a thoughtful approach to custodianship mapping, and a global enterprise retention program that all work in synchronization. And that feels very good.

About the Author

Deidre Paknad is the CEO of PSS Systems and a noted thought leader on retention and preservation topics. The company’s Atlas LCC and Atlas ERM products are the first of their kind and are used by Citigroup, First Data Corp, Devon Energy, Halliburton, Merrill Lynch¸ Pfizer and other large companies. The Atlas map of organizations, employees and custodial systems (first introduced in 2004) led to the popularization of the phrase "mapping". Deidre founded the CGOC (a corporate practitioners’ community of shared interest on retention and preservation) in 2004 and speaks and writes regularly on these topics. She first introduced this article at the Georgetown Law School eDiscovery Institute in November 2006 and is credited with codifying the Zubulake Checklist in 2005. She works very closely with Fortune 100 corporations on establishing sustainable, efficient enterprise-wide retention and legal holds processes. She can be reached at deidre.paknad@pss-systems.com.