Recommind recommends recognising risks of e-disclosure unreadiness

I do not take a great deal of notice of press releases. If they are interesting, everyone else will gamely recycle their contents, and who wants to be like everyone else? If they are not…. you don’t need me to finish the sentence. And when I say “recycle their contents”, I mean just that – a quick copy and paste and they are done – instant journalism. It has its place but it is not what I like to do.

I do, however, like to be sent PRs, so that I can decide if they are worth the trouble of translating from their native Marketing Crap into English. All those tri-partite, polysyllabic, hyperbolic exaggerations (like that one) which someone has laboured over so assiduously have to be stripped out to try and divine what actually matters (try it: look at most PRs in this business and you will find that every verb has three long adverbs and every noun has three adjectives  – “rapidly, accurately and defensibly” or  “innovative, cost-effective and user-friendly”; once or twice is fine, but by the time you get to the end of a piece in which every word has multiple qualifiers you are gasping for breath).

To be fair, most of those I actually want to hear about are not guilty of this, including several of the sponsors of the e-Disclosure Information Project. Perhaps they self-select as being literate as well as technologically sophisticated.

Recommind does blunt, to-the-point, summaries of what matters. Perhaps that derives from their business, which is filtering the important out of the mass for a range of information retention and investigatory purposes. They have recently commissioned a set of surveys which, unsurprisingly, point to the conclusion that Recommind’s products are just what is needed to avoid corporate disaster. I give it air-time because the threat is a very real one and, although I prefer in general to talk up the benefits of adopting a solution rather than the downside of not doing so, I make an exception here. Whose products and services you actually buy will, I trust, be the outcome of a proper evaluation of risks, requirements, specifications and costs. The only mistake is to ignore the problem.

That is captured by the headline UK Firms Facing eDisclosure Time Bomb, Recommind Research Reveals. The gist of it is that very few UK organisations are doing anything to anticipate the need to pull out of their data stores what they need in order to react to the needs of litigation or the requirements of a regulator. The survey which is the source of this conclusion provides a statistical source for my complaint that companies blame their lawyers and the court system for what is, at bottom, an organisational failure of their own. The lawyers and the system may well have their faults, but chief among them is their inability to get across to the clients that fast and cost-effective access to the right data is critical.

The main message from the press release is this quotation from Simon Price of Recommind:

“With eDisclosure a relatively new phenomenon for many UK companies, most businesses still don’t fully understand its importance. There’s a danger that the IT team won’t necessarily recognise and fully comprehend which information should be preserved and disclosed, and which can be discarded. Similarly, the legal department will be experts on this side of things, but they need the IT team to help ensure any technology processes and systems are accurate and up to the job. At the moment, each department seems to have its own different set of priorities, but as eDisclosure becomes more commonplace, businesses need to take a joined up approach with eDisclosure higher up the priority list.”

The consequences of this were succinctly put by US Magistrate Judge John Facciola in a speech I heard him give in Washington last year (see Leadership in Litigation). He reported records managers as saying that the lawyers who demand finely-graded information in a hurry are the same ones who could have come down a year before and specified what they expected from an information system. The split between departments to which Simon Price refers operates as an impediment to sensible buying decisions even in good times – this is a problem which has multiple owners and that means that buy-in and budget are required from several departments. In bad times such as these, the apparently easy course is to wait for a  problem to arise and then spend whatever it takes to react to it – the price may by then be high, but no-one has to think about it because there is no alternative. It is easier to decide to go and put a fire out than to plan for preventing fires, but it can be an expensive option.

With litigation, there usually is an alternative – a company  can choose to abandon a claim which might otherwise be made or to settle one made against it. This was one of the points made by Lord Justice Jackson at his recent meeting in Birmingham (see Jackson launches costs management trial in Birmingham). His concern was that lawyers and the courts should be doing their bit to make access to justice affordable. That is only part of the story, however – if the clients’ data is in shit order then it does not matter how efficient the courts are because filtering out the useful and the disclosable from the dross will be expensive anyway. When the regulator comes knocking, there is no choice.

These essentially negative purposes for equipping a company with the tools to find their data are only half the story. There are good positive reasons for wanting to know what documentary material you have. Corporate memory – the ability to learn from, or simply to remember, what happened last time – becomes more important as data expands and as the work-force becomes more mobile – “mobile” both in the sense of being  away from the office and in terms of job-mobility. The head-count reductions of recession lead to the discarding of institutional memory with every executive who is handed his or her P45.

No-one pretends that this is cheap. Solutions for winnowing and refining an organisation’s data require a plan and some resources as well as a software application. Most organisations can take a stab at estimating what costs they will incur in the next twelve months in bringing or defending litigation claims, in satisfying a regulator or in investigation of internal fraud. As a rough rule of thumb, you might expect that to be up on last year as companies try to recoup losses which recession has either created or exposed and as regulators tighten up. Estimates can be obtained from the suppliers of solutions – not just for the software but for the project management and other internal costs – and can be set against reductions in future lawyer and service provider costs.

It is not the inevitable outcome of this exercise that companies will in fact install some software and implement a document retention policy. It is a perfectly proper outcome to decide advisedly that the ratio of risk to prospective expense does not justify pre-emptive steps. The key word here is “advisedly”. The shareholders, and others with an interest in the company’s direction, may not agree with the conclusion, but they can at least follow the workings behind the conclusion. Most companies, to judge from the Recommind survey, appear to have no workings and no conclusion.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, Document Retention, E-Discovery Suppliers, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Litigation costs, Litigation Readiness, Lord Justice Jackson, Recommind, Regulatory investigation. Bookmark the permalink.

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