Adopting better business practices: Purging old data is a proven way to manage electronic discovery risk

Synopsis Part 3:  Adopting better business practices: Purging old data is a proven way to manage electronic discovery risk

eDiscovery Spotlight: Interview with Johnnie M. Jackson, Jr, former VP and General Counsel for Olin Corporation and currently Lead Director of the Advisory Board for ESI Strategies, New York, NY (Part 3 of 3, Part 2 of 3, Part 1 of 3)

By K.E.H. Polanski writing for DCIGInc.com
www.dciginc.com


Kelly:  Can you share a story from your experience as a corporate GC, on the practical aspects of dealing with legal discovery?

Johnnie:  Sure.  The first thing I would do is to remind everyone of the old adage: "The best defense is a good offense."  Be proactive!  While I was Deputy GC at Olin, I became aware that that company was paying to rent a warehouse to store something like 16 tractor trailers worth of boxed documents related to a business that had been sold many years before.  The lease on the warehouse was coming up, and I decided to get proactive.  We reviewed what was in the warehouse to see if the records were needed at all and then we sorted the documents, and pared them down to the essentials of what we needed to keep.  We managed to get it down from a warehouse-full to between 6 and 10 boxes of documents that could easily fit in the corner of an office.  And we were able to cancel the lease and save money.

But there was also another benefit.  Literally a week after we had finished our document review and destroyed the documents we no longer needed and were not required to keep, I received a phone call from a government agency.  They were interested in pursing an investigation of the industry to which this former business was related, and they wanted to know if we had any records pertinent to their investigation.  I explained to the agent what we had just done and that we only had about 10 boxes of material still available - but that was all. The agent's response was "oh" and I never heard anything again about the investigation.   The long and short of the story is that by our getting proactive, managing our inventory of documents and getting rid of what we no longer needed, saved Olin from having to respond to what could have been a massive discovery action or civil investigative demand.

Kelly:  Do the lessons learned from this apply to IT?  Should more organizations get proactive about purging their online data records to save themselves from potential discovery costs and burden?

Johnnie:  In all fairness to IT departments, they are doing a lot of that right now.  Part of why they haven't been doing it as much as perhaps they should is that being proactive costs money and it's not always in the budget.  Being proactive certainly saves more money than it costs, but the savings are hard to prove it's hard to see up front.  It's more about having good business practices in place.  You need to know what you have, be able to find it and be able to prove the chain of custody.  And being proactive requires and "champion" and traditionally, being in records management has not been viewed as an area that will "enhance a person's career" - but that might be changing.  

Kelly:  How can CIO's translate this into practical action?

Johnnie:  CIO's are used to applying business logic to the systems IT is charged with maintaining.  That logically thinking should apply here as well.  eDiscovery and litigation readiness is very similar in planning to having a disaster recovery plan.  This is analgous to a mini-Y2K exercise.  Before Y2K, disaater recovery plans were not as common as they are now and it took a lot of money to get them in place.    People got behind the need for a plan and now it's "normal".  A similar effort needs to be made to plan and prepare for eDiscovery and litigation readiness.

If you would like to communicate with him directly, he can be reached at jjackson (at) esistrategies.net or in his Stamford, CT office at 203-353-9493.

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