New record management requirements impact public and private sector

A recent directive requires federal agencies to institute electronic records management plans

Private sector organizations are commonly at odds with regulatory investigators, but in some ways, the objectives of the government and the companies they investigate are strangely aligned. Cautionary tales about the importance of information governance and e-discovery have long been told in both the private and public sector. Save too much electronically stored information (ESI) and downstream e-discovery burdens increase. Save too little and risk non-compliance with requirements to preserve certain kinds of information. In today’s era of big data, organizations need strategies for proactively managing information and responding to e-discovery and other information requests on a case-by-case basis.

Proactive information management strategy

Both private and public sector organizations are tasked with proactively balancing the costs of over-preserving ESI with the risks of under-preserving ESI. The balancing act is not always easy, but the good news is that businesses do not need to keep every shred of ESI as a business record for eternity. In fact, the holy grail of records management is to eliminate information the organization does not have a legal or business need to keep. By leveraging technology to proactively identify and classify ESI that should be preserved, organizations can manage the lifecycle of useful data more effectively while discarding the rest.

This information governance balancing act recently became more important for the public sector following President Obama’s Memorandum on Records Management and the National Archives and Records Administration’s (NARA) subsequent directive. The directive mandates that all agencies must have plans to manage all electronic records by December 31, 2013 and must be compliant by December 31, 2019. This means that agencies are facing very important decisions that will impact not only their record keeping, but also how they conduct Freedom of Information Act requests and discovery, and how they manage their data holistically. The NARA directive gives agencies the opportunity to look at their ESI issues with a critical eye toward solving multiple issues.

The directive impacts the public sector much the same way the private sector has been impacted by regulations for decades. Private sector companies subject to Sarbanes-Oxley, Heath Insurance Portability and Accountability Act, Securities and Exchange Commission, and hundreds of other rules and regulations must comply with record retention mandates or face fines and penalties for non-compliance. These mandates have only tightened in the wake of the recent financial crisis and the ensuing enactment of tighter regulatory controls and legislation like Dodd-Frank.

As a result, both public and private sector organizations are aligned in their goal to proactively manage information more effectively. Not surprisingly, both are seeking better technology approaches such as data archiving and cloud computing to help them address new and often more stringent record keeping requirements. Given the dramatic growth of worldwide data, organizations must turn to these kinds of technology solutions to automate retention policies that were once manual. Although proactive information management may be driven by different public and private sector requirements, the long-term goals and strategies are essentially the same. The best way to accomplish these and other case-by-case objectives related to e-discovery and investigations are topics government leaders plan to address at the E-Discovery and Government Education (EDGE Summit) to be held in Washington, D.C. on June 11.

Case-by-case e-discovery and investigations strategy

Recent developments also illustrate how public and private sector objectives are aligned with respect to shorter-term e-discovery and investigatory goals. Although proactive information management can reduce downstream e-discovery burdens, the burden to sift through mounds of data for records requests, litigation and investigations still exists. Private and public sector organizations have been exploring new technologies to help reduce this burden and once again the sectors appear to be aligned.

For example, the Wall Street Journal recently reported on the proposed merger of Anheuser-Busch InBev NV and Mexico's Grupo Modelo SAB. In response to an inquiry by the Department of Justice’s (DOJ) antitrust division, lawyers claimed more than a million documents would require review to satisfy the request for more information about the merger. Rather than reviewing all of the documents manually, the lawyers used predictive coding technology to streamline the process after receiving the DOJ’s blessing.

An attorney representing Constellation and Crown Imports [other companies involved in the transaction] explained that they spent 50 percent less than they would have spent using more traditional means. A DOJ spokeswoman added that the antitrust division has worked with other parties who choose to use this “new technology” to comply with civil investigative requests. She also went on to state that the division has also used predictive coding technology for reviewing investigative documents internally.

Both the public and private sector are tasked with proactively and reactively managing massive amounts of information that continue to grow. For decades, both sectors have struggled to comply with rules, regulations and e-discovery burdens in the midst of this growth. Today, information growth can be managed by leveraging archiving technologies that can be deployed on premise or in the cloud. Archiving technology enables organizations to centralize information and implement automated retention policies driven by presidential mandates, regulatory requirements, FOIA requests or litigation. Similarly, e-discovery tools such as predictive coding provide organizations with a means for responding to requests for data more efficiently and cost effectively on a case-by-case basis. Together, these technologies are the cornerstone of any good information governance strategy whether your organization is in the public or private sector.

Contributing Author

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Matt Nelson

Matthew Nelson is e-discovery counsel at Symantec and a legal technology expert with more than a decade of experience helping organizations address electronic discovery, regulatory...

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Contributing Author

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Allison Walton

Allison Walton is an e-discovery attorney at Symantec Corporation. Prior to joining Symantec, Allison worked for Liquid Litigation Management and with Fortune 500 clients at...

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