Upcoming deadlines to comply with the 2012 Managing Government Records Directive and growing eDiscovery demands, along with the accelerated pace of new technology adoption are changing the records management landscape and bringing together records managers, legal and IT in a transition towards a broader Information Governance (IG) strategy that integrates records management and eDiscovery processes.
In Deloitte's annual survey of the state of e-discovery in government, only 38% of respondents believed that, if challenged by a court or opposing counsel, their agencies could demonstrate that their electronically stored information (ESI) is accurate, accessible, complete, and trustworthy. So, eDiscovery requires solid IG, including the ability to efficiently and cost-effectively find responsive information (including documents, email and social media), apply retention rules and legal holds, and integrate with litigation support tools. In the face of opposing counsel eDiscovery requests, most legal offices lack the ability to effectively search for responsive documents and email on an enterprise basis.
These evolving needs demand an IG framework that goes beyond traditional records management, to include eDiscovery, privacy, FOIA, and information security, particularly as agencies move email and information to cloud environments, such as Office 365 and Google Apps, in response to OMB’s Cloud First mandate.
eDiscovery requests include ESI, which includes both record and non-record material. As agencies define their records system requirements, they must consider the capture, storage, retention and search of non-record information that have traditionally been excluded from records repositories. Records retention policies must be revisited to include retention periods for non-record, discoverable information, simplified email retention schedules, and social media.
A major challenge facing agencies is how to implement agency-wide electronic recordkeeping and eDiscovery within current environments in which electronic records, including email, social media and office documents, reside in many disconnected and incompatible systems. Agencies must evaluate whether a centralized enterprise records repository is feasible and desirable, or whether the agency’s information governance and retention policies must be applied in a consistent manner across multiple repositories. Another priority is to enable efficient eDiscovery of record and non-record material stored in these information silos.
Current practices, which involve searching each of these disparate systems individually, have proven to be time and labor consuming, and often result in lost cases due to the inability to produce responsive records. A key requirement for eDiscovery is the ability to search and find responsive email across the enterprise without having to look in individual Outlook inboxes. This challenge is pressuring agencies to move to centralized, searchable email record archives including cloud-based email infrastructures.
As agencies prepare to address the information lifecycle of hundreds of millions of records, they must evaluate technologies that automate records processes, particularly the capture, organization and categorization of records.
Email is a major factor for agencies in the event of litigation, FOIA requests and investigations . The sheer volume of agency email demands a solution that removes user involvement and automates the capture and retention of email. NARA’s Guidance on a New Approach to Managing Email Records, recommends a role-based approach dubbed Capstone, which allows agencies to designate certain email accounts as permanent records by job position or role, while all other email accounts are designated as temporary for a set time.
Agencies should consider Capstone as well as other approaches such as auto-categorization to help capture, categorize and deduplicate email.
Records and legal leaders must work hand-in-hand to design and develop IG solutions that address overlapping records management and eDiscovery needs. Best practices include:
Define and gain consensus on the agency’s requirements for records management, eDiscovery and litigation support.
Identify gaps between the requirements and agency’s current technology, and determine whether gaps can be addressed by adapting current systems or new technology acquisition.
Evaluate proven technology to provide efficiencies including auto-categorization, enterprise search and digitization.
Analyze viable alternatives and make recommendations on the best solution to meet the agency’s needs.
Finally, records managers and legal offices must continuously respond to the accelerated pace of new technology, including collaboration, mobile devices, social media and cloud-based solutions that challenge traditional records management policies and processes. For example, courts have recently ruled that ESI stored on mobile devices is subject to Litigation Holds. Records may be created in the cloud, approved on a mobile device, revised in a SharePoint site and shared on a social media site. The IG approach must focus on the capture, retention and security requirements for the various states of these records throughout their information lifecycle -- from cradle to grave.
Marty Heinrich is the Director of Information and Records Management at Array Information Technologies.
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