The Association of Corporate Counsel (“ACC”) has published a new survey report that discusses significant challenges companies are facing when it comes to preserving and producing relevant electronically stored information (“ESI”) for U.S. litigation. In particular, the report provides detailed metrics that spotlight a correlation between information governance maturity and discovery responsiveness. Understanding this correlation can help companies identify gaps in their upstream information governance programs, which should yield better downstream results when they need to preserve and produce relevant ESI in litigation.
The ACC Report
The ACC commissioned a survey in March 2021 to determine how companies have addressed the recent exponential growth in information, particularly from text and instant messaging apps and workplace collaboration tools. In the preamble to its report, the ACC observed that these sources and others have significantly increased the amount of data that must be managed for information governance and litigation purposes. The ACC also noted the difficulty companies face integrating these sources “into traditional eDiscovery workflows.” All of which led the ACC to survey 211 in-house lawyers who possess “expertise in data retention and preservation, discovery, and litigation” to gauge the maturity of their respective companies’ information governance and discovery responsiveness.
The Correlation between IG Maturity and ESI Preservation and Production Problems
The report offers several key findings regarding the problems companies experience with preserving and producing relevant ESI from certain data sources. Not surprisingly, those problems seem to arise with greater frequency for enterprises that lack mature information governance processes for their data. The report offers a correlation between the lack of IG maturity and the inability to execute basic discovery duties such as preserving and producing relevant ESI.
This correlation is most pronounced for text and instant messages. Over 60% of respondents confirmed they lack both centralized “enterprise content management” and retention policies for text and instant messages such as “iMessage, WhatsApp, WeChat, Signal, etc.” Given this lack of governance, it should come as little surprise that nearly 50% of respondents indicated they have “[n]o means to preserve data” from text or instant messages. In addition, well over a third of respondents revealed that it would be “difficult” or “[c]ompletely impossible” to “quickly and easily . . . find, collect, and preserve relevant records” from text or instant messages. These problems manifested themselves downstream in discovery as over 70% of respondents found it “[d]ifficult” or “[v]ery difficult” to produce relevant text and instant messages. The report suggested a similar correlation for other data sources including, but not limited to, online meeting tools (“Zoom, Slack, Google Meet, Teams, Voice Recordings”) and social media (“Facebook, Twitter, Instagram, YouTube, etc.”).
In contrast, respondents suggested the opposite correlation for mature data sources such as cloud-based email. Nearly 70% of respondents indicated their respective organizations had a centralized data repository for emails governed by “policies and procedures,” with many (48%) “[u]ndertaking automation and systematization” of those policies and others (20%) automating the disposition of their emails. Only two percent (2%) stated they had “[n]o means to preserve” relevant email content, with a comparable percentage suggesting it could be difficult or impossible to “quickly and easily . . . find, collect, and preserve relevant records.” Over 75% of respondents confirmed they could easily produce email in discovery.
That respondents generally experienced greater document production issues than preservation problems is likely attributable to the “[s]ave everything in place” strategy they have adopted in many instances to address ESI preservation. For example, 44% of respondents confirmed they have a keep “everything in place” policy for internal messages such as Slack and Teams. Given the difficulty associated with retrieving and producing Slack messages, it is not surprising that roughly the same percentage of respondents (48%) would express difficulty producing relevant Slack and Teams content. These percentages also roughly correlate with the percentage of respondents (40%) that lack centralized enterprise content management and retention policies and practices for Slack and Teams content. In summary, the lack of mature IG processes, combined with a “save everything” approach, may lead to production problems in discovery.
Lessons from the ACC Report
That a correlation exists between the maturity of a corporate information governance program and discovery responsiveness is not exactly breaking news. Courts and experts have emphasized this point now for many years. And yet, given the survey results, it’s still somewhat surprising how far enterprises still have to go in terms of maturing their upstream information governance processes to ensure better downstream results in litigation and discovery.
The report’s conclusions indicate that both “records retention” and “IG improvements” are high on the priority list for corporations, but they also confirm that a lack of both money and resources continue to hamper the rollout of IG measures. After all the education emphasizing the correlation between proactive information governance and effective discovery responsiveness, many companies still do not see a need to allocate budget (51%) or personnel (52%) to address these issues.
Will companies follow the same path toward court sanctions that met other enterprises which ignored information governance? Not if information stakeholders make the case for a modest budget and manpower allocation. Working with third party expert consultants, companies can develop cost-effective information-based policies for records retention, data use, and communications. They can then link those measures with economical litigation readiness steps such as developing legal hold policies, checklists, and playbooks. All of which can go a long way to helping an enterprise avoid downstream discovery troubles.