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BENNETT B. BORDEN AND JASON R. BARON PUBLISHED IN THE RICHMOND JOURNAL OF LAW & TECHNOLOGY

Bennett B. Borden (IGI Founder & Chair) and Jason R. Baron (IGI Co-Chair) were recently published in the Richmond Journal of Law & Technology. Click here to read the full article: Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 RICH. J.L. & TECH. 7 (2014). Borden presented the paper at a recent symposium entitled “Information Governance: A Comprehensive Approach to e-Discovery,” held at the University of Richmond in Richmond, Virginia, on February 28, 2014.

In their article, Borden and Baron make a compelling case for applying predictive coding and other analytical techniques developed in the context e-Discovery to Information Governance issues outside of the litigation context. The article begins by tracing the history of the development of e-Discovery from the days of manual review to keyword searching to the 2012 Da Silva Moore case, the first to give judicial approval to the use of predictive coding. Borden and Baron argue that predictive coding and other analytical tools used to find “the most relevant needles (i.e., facts) in the Big data haystack” in litigation could be used to analyze other matters in which relevant information needs to be mined from mountains of data. They also provide several “true life” examples in which the techniques they advocate were used in practice both in a litigation and non-litigation context (e.g., internal investigations). More than just reducing costs, they argue, advanced analytics can be used to get at the relevant facts, faster. This earlier, more accurate picture of what happened confers a strategic advantage.

More than just reconstructing the facts of a past event, Borden and Baron posit that advanced analytics could be used prospectively—vetting political or senior management candidates, for example. They also discuss the use of such tools to predict and prevent future bad behavior. The authors note, for example, that people who commit fraud are often experiencing negative life events (divorce, financial problems, gambling, etc.), traces of which they leave in the electronic data they produce, which can of course be mined to predict where trouble is likely to arise. The use of analytics in records and information management is also discussed. In short, the applications of predictive coding and other analytical techniques to non-litigation problems are manifold. As those tools continue to improve, their primary limitation may be our ability to think outside the context in which they were developed to imagine where they can be applied.

Excerpt:

“We are now in a post-Da Silva Moore, “Big data” era where lawyers are on constructive (if not actual) notice of a world of technology assisted review techniques available at least in the sphere of e-Discovery. The proposition being advanced is that the greater revelation of Da Silva Moore is how similar the techniques being put forward as best practices in e-Discovery fit a larger realm of issues familiar to lawyers, many of which fall within what is increasingly being recognized as “information governance” practice. It is here where we can break new ground in our legal practice by recommending the use of these advanced techniques to solve real-world problems of our clients…”

 

DOWNLOAD THE NEW IGI SPECIAL REPORT

“In the wake of the financial crisis, several nations initiated regulatory reforms that create prescriptive and granular information governance requirements.”

- Information Governance in a New Era

IGI Special Report

Karen, associate general counsel at a global media and entertainment conglomerate, was having a bad day. She was on the phone with outside counsel, and the news was not good. During the discovery phase of a critical case, her lawyers had made a mistake – a big one. Counsel had represented that the company turned over all the evidence in the case – but they had not, despite three months of round-the-clock work with IT and the records managers that resulted in turning over millions of email messages and thousands of boxes of paper records. Now, the lawyers had discovered a cache of old backup tapes in a closet in Boise and a half a dozen storage lockers full of paper records in Slough. This was going to be painful.

Six months later, after the smoke had cleared, Karen called for a post-mortem. They had avoided a deathblow sanction but were eventually forced to settle for millions more than the worst case projection. Even worse, they had exposed their flank for future cases.

Karen wanted answers.

Why doesn’t a company of our size and sophistication know what information it has and what it doesn’t? Why does it take months of work and hundreds of thousands of dollars to find and produce the responsive information? Why are we keeping all of this information? Does the law require us to keep it? Does it have any value to us? Do we have any repeatable way to decide what to keep and what to throw away? Finally, who owns this problem?

IT throws up their hands and says, “Hey, garbage in, garbage out. We just run the systems, but the business owns the information.” The business isn’t buying it, and legal is left holding the bag.

Across the globe, people like Karen in organizations of all sizes are asking the same questions. We may live in the Information Age, but many organizations are stuck in the Stone Age – effectively piling their information in a dark cave and hoping that nothing bad happens.

Unfortunately, hope is not a valid strategy in an increasingly complex and consequential records management environment – an environment in which new, complex laws and regulations dictating the retention and management of specific information are created seemingly every day. This is an environment in which developing nations are modernizing regulatory regimes and creating new information governance requirements at the same time. This is a world where information is exploding, especially the most challenging kind of information to manage – unstructured information.

In this Information Governance Initiative Special Report we explore recent key developments in information governance and their impact on global organizations.

Note that if you already registered to join the IGI Community, you will have received an email message with a direct link to the Report.

 

JASON R. BARON INTERVIEWED IN THE ARTICLE: AGENCIES GOING ‘CLOUD FIRST’ FACE A RECORDS RIDDLE

IGI Co-Chair, Jason R. Baron, was interviewed by Richard Walker in the recent article, “Agencies Going ‘Cloud First’ Face a Records Riddle,” published at InformationWeek Government. Click here to read the article.

According to Baron, federal agencies attempting to comply with the Obama Administration’s directive to shift to cloud computing would be well-advised to address their electronic recordkeeping obligations upfront or risk failing to meet key and impending e-recordkeeping deadlines. The "Capstone” approach, introduced by the National Archives and Records Administration (NARA) in August of last year, one option for addressing these concerns, is discussed.

Excerpt:

Agencies that aren't spending enough time on electronic records requirements at the beginning of the process of migrating to the cloud for email may have difficulty meeting these deadlines, said Baron.

"Otherwise you're building what amounts to a slow-motion train wreck, where you've got this cloud and you've got a million emails somewhere in there and that's all very good. But at the end of the day, when the agency wants [to forward email records] to NARA, it may not have deleted any email or differentiated between what's permanent and what's temporary. You need to think about these issues on the front end."

 

JASON R. BARON INTERVIEWED AS PART OF “THOUGHT LEADER” SERIES POST-LEGALTECH® NEW YORK 2014

Jason R. Baron, IGI Co-Chair, was interviewed by Doug Austin as part of a thought leader series following LegalTech® New York 2014 (LTNY 2014). To view the full article, “Jason R. Baron of Drinker Biddle & Reath LLP-eDiscovery Trends,” published at the eDiscovery Daily Blog, click here.

Among the trends Baron identified at LTNY 2014 was the increased attention given to Information Governance, which he described as “the new black.” Of particular interest to Baron is the potential for application of analytical tools developed in the context of eDiscovery to tackle issues in the broader Information Governance space. Other trends Baron identified were discussions of cloud computing for big data storage, including the implications for eDiscovery, as well as increased focus on the concept of “technological competence” following recent changes to the ABA Model Rules of Professional Conduct.

Baron also discussed proposed changes to the Federal Rules of Civil Procedure pertaining to discovery, suggesting that rule changes alone are not enough and that we must address “at a more foundational level” the issues related to ESI.

Excerpt:

“However, what I believe to be of greater importance than rules change is a recognition on the part of the judiciary as well as all litigants that the volume and complexity of data is doubling every couple of years, and the technological environment is one that should include advanced tools to help remediate the severe challenges we all face in terms of the preservation of ESI. We live in a world of exponential growth of big data and we need to deal with that fact at a more foundational level than with rules changes for litigation.”

Note that Baron submitted comments on the proposed changes, a discussion of which can be found by clicking here.

 

JASON R. BARON TO MODERATE SEDONA CONFERENCE® WEBINAR ON MARCH 27, 2014; 1:00 TO 2:30 PM EST

Jason R. Baron, IGI Co-Chair, will moderate The Sedona Conference® Webinar: Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery and Commentary on Achieving Quality in the E-Discovery Process.  Panelists are Maura R. Grossman (Wachtell, Lipton, Rosen & Katz), Hon. James C. Francis IV (U.S. Magistrate Judge, S.D.N.Y), and Jeffrey C. Sharer (Sidley Austin).

From The Sedona Conference® website, the webinar will cover:

  • The limitations of traditional manual review and keyword search as shown in case law and research
  • How using technology-assisted review methods hold the potential, in appropriate cases, to reduce time and cost while increasing accuracy in e-discovery productions
  • The importance of ensuring front-end project management over the e-discovery process
  • How employing sampling and iterative methods can ensure quality and add to the defensibility of your e-discovery production
  • Practice pointers that you can immediately put to use

For more information and to register, see The Sedona Conference® website.

 

INFORMATION GOVERNANCE IN A NEW ERA: HOW GLOBAL LEGAL AND TECHNOLOGY CHANGES AFFECT YOU

RECORDS MANAGEMENT IS CHANGING. ARE YOU READY?

Webinar at 2 pm ET on March 25, 2014.

Across the globe, there is a trend toward increased regulatory scrutiny that increases the stakes for non-compliance with records retention regulations. At the same time, the enterprise is changing. Corporate IT is becoming less corporate, more mobile, and less centralized. Records are created and stored in mobile devices, in the cloud, and in dozens or hundreds of repositories that were not designed with records management in mind, and may not even be under control of corporate IT.

The IGI has completed a study of key global legal and technology developments and their effect on records and information management best practices. We will be discussing the key findings of the study on a webinar hosted by IGI Charter Supporter Recall (who commissioned the study) at 2 pm ET on March 25, 2014.

On the webinar, Barclay T. Blair, Executive Director of the IGI, will discuss the findings and how organizations should respond to increased scrutiny of their information governance policies and practices.  The complete IGI report will be available to attendees after the webinar and will be available for download at www.IGInitiative.com immediately after the webinar.