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AN INFORMATION GOVERNANCE SUCCESS STORY FROM IGI CHARTER SUPPORT ACTIVE NAVIGATION

Our Executive Director and Founder, Barclay T. Blair, just published an inside scoop on an information (IG) success story involving IGI Charter Supporter, Active Navigation. Read the full story here.

Striking enough are the basic numbers from this story. Active Navigation is helping its customer, Rio Tinto, a large mining company, address a petabyte of unstructured data spanning numerous continents. So far they have determined that roughly 40% of the data can be deleted or archived, and the customer believes it will realize more than $2 million in cost avoidance and savings to in the first year of the program.

But, even more striking is the deal structure between the two organizations, which is designed to share the risks and rewards. Active Navigation only gets paid for delivering documents meeting the customer’s remediation policy. Could this risk-sharing structure be the approach of the future? Read Barclay’s full piece here, and check out the press release from Active Navigation.

 

REMEMBERING RICHARD G. BRAMAN

It was with great sadness, on June 9, 2014, that the world learned of the passing of Richard Braman. Among his many achievements, Richard was the Founder and Executive Director Emeritus of The Sedona Conference® and a partner in the firm, Gray, Plant & Mooty.

To attempt to state, briefly, how Richard’s vision changed the practice of law or how his life positively touched the lives of so many, would be an impossible task. Richard’s impact, and the many facets of his professional and personal contributions, are best captured in the heartfelt statements of his colleagues and friends – many of which appear on Sedona’s tribute page to Richard.

On July 10, 2014, a Celebration of Life honoring Richard was held at the Royal Palms in Phoenix. The following were remarks made by Jason R. Baron (IGI Co-Chair) at the event:

Oscar Wilde once said a visionary is one who can find his way by moonlight, and see the dawn before the rest of the world. Richard was just such a visionary, a pathfinder way ahead of his time.

It would be impossible to overstate the importance of Richard Braman and his vision to the practice of law. In founding The Sedona Conference®, Richard did more than he could ever have imagined in providing a forum for civil dialogue among lawyers in moving the law forward in a just and reasoned way. In fostering this atmosphere, Richard encouraged judges, as well as members of both the plaintiffs’ and defendants’ bars (and the occasional lucky government lawyer), to treat what was said at a Sedona meeting (wherever it might be held) as “staying in Sedona” – in essence liberating people to candidly discuss ways in which the law could be improved across a spectrum of topics including intellectual property, patent issues, and complex litigation including e-discovery.

In the spirit of Richard’s jazz club left behind in Minneapolis, the essence of Sedona has been improvisation in a new era of legal practice. This spirit of improvisation and dialogue was especially evident in earnest during the early years of Working Group 1, one of the most successful working groups in the ever increasing Sedona Conference constellation of activities. At the encouragement of Richard, Jonathan Redgrave, joined by others, spearheaded the new working group to focus on what guidelines and principles should operate to frame what in 2002 was the beginning of an e-discovery movement. I was privileged to be invited to participate in the second year of WG1’s existence, meeting Richard for the first time at La Posada de Santa Fe. It certainly was nice to be able to advance the law in a panoramic setting.

Among the concrete achievements of Richard’s vision: first, The Sedona Principles, first published in 2004, provided a framework for discussions which substantially contributed to the historic 2006 rules changes in the Federal Rules of Civil Procedure, which for the first time expressly recognized the importance of electronically stored information (ESI) in legal practice. Second, a legacy of dozens of commentaries published between 2004 and 2014 that have explored and illuminated the e-discovery landscape, which in turn have been cited in hundreds of court decisions and thousands and thousands of legal briefs, law reviews, practice guides, and by writers in the blogosphere (including in this space).

And third, Richard’s personal triumph: The Sedona Cooperation Proclamation. I was privileged to be present at the moment that Richard “got religion” on the subject of cooperation: the date was March 20, 2007, during a symposium entitled “And Justice For All…” sponsored by Georgetown Law School and H5, where Richard appeared along with Justice Stephen Breyer and others, including moderator Professor Arthur Miller, legendary professor at Harvard and NYU. After Richard made an emphatic point about the need for dialogue and cooperation in e-discovery given the growing technical complexity of the subject matter, Prof. Miller postured in mock disbelief: “Richard, we will get back to that utopian notion” later. That was the moment: Richard, with a burr in his saddle, came back to The Sedona Conference and with fired up enthusiasm began a campaign that resulted in serious conversations about cooperation in the legal space, leading to the Proclamation. The importance of the Proclamation is in how it frames the issue of cooperation comfortably within (and not opposed to) the paradigm of zealous advocacy on behalf of clients.

As many know, the Proclamation has been signed onto by hundreds of federal and state judges, and through these signatories is inculcated into the rules that govern conduct in a myriad of jurisdictions nationwide. I, for one, would wish to see every judge in the country sign on to the document, to further complete this portion of Richard’s already enormous legacy. Importantly, The Sedona Conference’s recommendation for revising Rule 1 of the Federal Rules to more explicitly embrace the notion of cooperation has been adopted in the proposed Rules amendments now going forward. In the blogosphere, cooperation was recently described as “the new black.” Richard would have liked that.

On a more personal note: I considered myself close to Richard, but there were many others that were closer… Richard had special ways of convincing each of us that what we said and thought was of vital importance. I cherished the time I spent with Richard, but never more so than in April 2013 when I accompanied Joe Looby to the Enchantment Resort in Sedona to assist in interviewing Richard for the documentary “The Decade of Discovery.” Joe and I got to spend a whole day with Richard (interrupted only by Richard’s dentist appointment). Near the end of the interview I posed a question about what Richard’s wife Margo had meant to him. His touching tribute can be seen as a short clip on The Sedona Conference tribute page to Richard. The film itself is now an even more poignant tribute to Richard’s achievements, and it’s my hope that it will be premiered widely in the months to come at law schools and special events of all types.

The following quote has been attributed to Plato: “Be kind, for everyone you know is facing a great battle.” Richard certainly faced his final battle with dignity and grace. Richard’s legacy will be reflected not just in reported cases, but in the hearts and minds of everyone he touched. May he be remembered by all of us for the rest of our lives.

Used with permission of and (c) 10thMountainFilms

Richard Braman and Jason R. Baron (Photo used with permission of and (c) 10thMountainFilms)

 

THE IGI HAS COMMENTED ON NARA’S DRAFT AUTOMATED ERM REPORT AND PLAN

The Information Governance Initiative has prepared and submitted a public comment on the National Archives and Records Administration’s (NARA) draft automated Electronic Records Management (ERM) report and plan. Under the Section A3.1 of the Managing Government Records Directive which requires federal agencies to “manage all permanent electronic records in an electronic format,” NARA is to develop a plan outlining suitable options for automating ERM to reduce the burden associated with it. NARA requested comments on its draft report and plan. Click here for more details.

Given the importance of NARA’s efforts to preserve our nation’s historical record and provide access to that record, as well as IGI’s commitment to public advocacy for information governance, we decided to provide comments.

We believe NARA has taken a significant step forward in fulfilling Goal A3.1 through issuance of the Draft Plan dated March 10, 2014. First, NARA has recognized that the "processes and tools that agencies currently use to manage electronic records are not adequate to support consistent compliance with the Federal Records Act." Second, NARA has further recognized that "most agencies are relying on individual staff members to capture and categorize their electronic records, if they are managing electronic records at all. The document goes on to note that "[e]nd users find it burdensome to manage their electronic records if that means touching each file and making a separate recordkeeping decision about each one." Third, NARA recognizes that the availability of records management application software on the market "has not led to universal use of these tools in agencies even for types of records that RMAs can manage; the problem of achieving consistent management of all agency electronic records remains unsolved in spite of this technology." Fourth, NARA has identified the fact that "[p ]romising tools for automation already exist," and that "[t]he advanced search space, including machine learning or predictive coding as used in eDiscovery, is one of several promising areas for records management exploration."

Each of the four points listed above represent an enlightened view of the challenges and opportunities present at the current time to optimal recordkeeping in the public sector space, and in our view, the Draft Plan therefore represents a signal achievement, indicating that much progress has been made in terms of the public policy discussion since issuance of the President's 2011 Memorandum and the 2012 Directive itself.

- Excerpt from the Information Governance Initiative’s Comment on NARA’s Draft Automated ERM Report and Plan

The IGI also commented on the Draft Plan’s failure to adequately take into account the budgetary timelines faced by agencies facing deadlines for implementation, and urged NARA to revisit its timeline and accelerate it due to the urgent need for agencies to act. The IGI also advocated for more transparency in the commenting process to foster open dialogue about the various proposals. In addition, IGI recommended that more emphasis be placed on requesting views from the private sector, so that the government can benefit from private industry’s experience to more effectively tackle issues at the intersection of technology and public policy.

For a complete listing of IGI’s remarks, click here to view IGI’s comment drafted by Jason R. Baron (IGI Co-Chair).

 

IGI ENCOURAGES COMMENTS ON NARA’S AUTOMATED ERM REPORT AND PLAN

The Information Governance Initiative is drafting a public comment on the National Archives and Records Administration’s (NARA) draft automated Electronic Records Management (ERM) report and plan.

By 2019, the Managing Government Records Directive requires federal agencies to “manage all permanent electronic records in an electronic format.” Click here to view the directive. As part of that directive, under Section A3.1, NARA is required to “[i]nvestigate and stimulate applied research in automated technologies to reduce the burden of records management responsibilities” and develop a plan outlining suitable options for automating ERM. NARA has prepared a draft report outlining the goals of the project, its activities to date, and options it is considering for ERM. It has also outlined a draft plan for implementation.

NARA has requested comments from experts both within and outside the federal government to evaluate and build out their current plan. The experience of those within the IGI community positions our members to offer precisely the insights and guidance necessary to assist NARA in a successful development and implementation of an automated ERM plan. IGI therefore encourages our members to review NARA’s call for comments and respond directly to NARA. The request for comment and draft report and plan can be found hereComments are due by April 25, 2014.

 

THE IGI HAS COMMENTED ON PROPOSED CHANGES TO THE FEDERAL RULES OF CIVIL PROCEDURE

“The IGI generally supports the proposed Amendments in their present form. As further explained below, we believe that it would be useful in connection with the weighing of what constitutes “reasonableness” in preserving data under Rule 37(e), to have the advisory notes to Rule 37(e)(2) explicitly reference the fact that information management in the digital age is complex and nuanced, and that there is no “one” solution to solving the problem of over-accumulation of records and information leading in turn to issues surrounding over-preservation. We also believe that the advisory notes should go on to say that there are a variety of advanced technologies, tools and techniques emerging in the marketplace that, if used properly by corporations and institutional actors, may help to reduce the level of over-preservation that is of such evident concern.

While the adoption of a national standard in e-discovery – at least at the federal level – serves to provide clarity and is otherwise well-intentioned, our overarching view is that true success in reducing the cost and complexity of litigation will come primarily from technological changes in the corporate office environment, coupled with greater education of the bench and bar on how electronically stored information may be managed appropriately in a time of accelerating technological change. For us, it is important that the Committee understands the greater information governance context that particularly large corporate actors increasingly find themselves in, when thinking about the task of “fixing” particular federal rules due to perceived problems with the way in which current civil discovery is conducted.”

— Excerpt from Information Governance Initiative Commentary on Proposed Changes to the Federal Rules of Civil Procedure

The US Judicial Conference Advisory Committee on Civil Rules has proposed amendments to the Federal Rules of Civil Procedure, and has asked for public comment. Amendments to these same Rules in 2006 are often cited as demarcating the beginning of the current era of electronic discovery.

Given the importance of these Rules, the IGI decided to submit a comment to the Committee. There over 2000 comments on these proposed revisions.

Providing our commentary is part of the Information Governance Initiative's commitment to public advocacy for information governance.

You can find our comment, drafted by Jason R. Baron, Co-Chair of the IGI, here on the regulations.gov website. All comments are available here. More information about the Rules and the comment process is available here.

Photo Credit: Barclay T. Blair

 

WE ARE PARTICIPATING IN THE EXECUTIVE CONFERENCE ON INFORMATION GOVERNANCE

Bennett B. Borden, IGI Founder and Chair, and Jason R. Baron, IGI Co-Chair, will be moderating sessions and speaking at The Executive Conference on Information Governance: Collaborative Strategies for Maximizing Value and Minimizing Risk, jointly sponsored by ARMA International and The Sedona Conference®. The event will be held at the Omni Amelia Island Plantation Resort, April 14-15, 2014, Amelia Island, Florida.

From The Sedona Conference® website:

For the first time, The Sedona Conference and ARMA International are joining forces to launch a nationwide Information Governance conference, bringing together corporate and government executives from Records Management, Information Technology, Legal, Compliance, Privacy, Security, and other key disciplines to develop practical, comprehensive, real-world solutions for managing corporate information in a digital world. Utilizing the Sedona-style dialogue methodology, an expert faculty will seek common understanding from different stakeholder groups to create a framework for maximizing the potential – and mitigating the risks - of fast-growing data collections in complex organizations. Among topics to be explored:

  • Who are the stakeholders who must be at the IG table?
  • What is the value proposition for IG?
  • How can different IG professionals work with - and not against - each other?
  • How do we reconcile conflicting legal, social, and organizational cultures?
  • How will rapidly changing government regulations affect your IG program?
  • How will current trends in technology help you build your IG infrastructure?
  • What will be the IG challenges of the future, and how will we met them?
  • And much more!

The program is designed to help experienced practitioners gain a deeper understanding of the complexities that can arise with advanced information governance issues.

For more information, see The Sedona Conference® website or the ARMA Internationalwebsite.

[Photo credit ]