Hope is not a legal strategy

29
Jun
2013

David Ballard

The phrase “hope is not a strategy” is written on the walls of locker rooms and sales offices all over the world.  Putting what you deem as your best effort forward and hoping that the results come out in your favor is not a tactic that often works out.  

Rather, success is gained by taking complete control of the situation and managing events to the desirable outcome.  Hoping the puck finds the back of the net doesn't work. Neither does hoping that the prospect you've been speaking with for the last three months really, really likes your stuff and is going to send you a purchase order just because it's the right thing to do.  

Maybe if we all hope to wake up tomorrow younger, thinner and better looking, it will happen.

All that said, hope is exactly what many companies and firms rely on when it comes to data management and information governance. The hope that certain data sets like backup tapes won't be called into production during litigation. The hope that key documents will be found at a moment's notice when they're needed most. The hope that the email containing the damning statement from a former employee won't be found because it's buried deep in an off-site storage facility.  

The battle between hope and control plays out every day in executive suites across the country. On the control side, it's usually the good folks in records & information management (RIM) making the case that their company does not have the proper controls around their data and, just as important, the proper insight into exactly what their current data contains.  

RIM professionals are paid to eliminate the need for hope- they have exacting standards to ensure that every bit of data is accounted for and is either stored or disposed of according to policy.  Information that has value is maintained and kept accessible while anything that has lost its business value is destroyed.  

Lining up against the control side we have Team Hope. This is usually legal and information technology.  One would think that due to the very nature of each groups' responsibilities, there would be a natural bond between RIM, legal and IT. More often than not, though, RIM is the odd man out - they are shunned as a nuisance - their rules and policies can harm the business by making data too accessible or easy to find during litigation.     

Their proposals for tightening data management may slow down the rate at which business can be transacted by a few nanoseconds, preventing maximum profit gain. And the cost associated with executing a full information governance plan is usually a budget item that can be back-burner'd pretty quickly when no one can agree who should pay for it - legal or IT.  In the mean time, Hope and her ugly sister, Surprise (as in “surprise- guess what we found” or “surprise, that file we need is lost forever) lead the way when it comes to finding important data in a timely manner.

This probably sounds a lot more cynical than it's meant to be.  It's actually meant to sound hypocritical.  While hope seems to be a perfectly acceptable strategy for ediscovery and litigation support, nothing is left to chance on the business side of most corporations. Airlines throw all sorts of money at figuring out what we'll pay for a ticket. Online retailers have targeted promotions based on viewing habits. Credit card companies look at buying patterns. Profits drive the business and the business drives the stock, which makes the shareholders happy.  There is no hope involved here - this is cold, hard analytics and control.

But what about the poor RIM folks?  Why will no one listen to them?  Why is their crusade to eliminate Hope & Surprise from business given the cold shoulder?  Part of the reason is cost - companies do not want to spend money on a perceived problem until it becomes an actual problem.  It's too late then, you say, right?  Yes, but we'll worry about it later.  Another reason is the law itself.  When companies can successfully claim that finding their own data within their own enterprise or on their own tapes that they themselves are paying someone to store is an undue burden, then where is the incentive to do anything else?  They would rather play the hope card, hoping to out-maneuver opposing council and play the game that the needle cannot be found in the haystack.  It's their haystack and they put the needle there, but that's beside the point.  

Fortunately, this is changing.  The courts are becoming much savvier regarding data and accessibility and are mandating that companies produce from tape. They don't hope the company can find it - they are holding the company in contempt if they can't find it.  And RIM is getting called back to the table - legal is taking them by the hand and telling IT that they are to listen to and implement the plans that RIM has been trying to get heard for years.  The potential liability cost of unmanaged data is finally surpassing the cost of storing and maintaining access to that data.  The standard cry of “storage is cheap - buy more and we'll worry about it later” is finally getting old as more General Councils are figuring out that it is indeed later now and hope is no longer a dependable strategy.