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Information Management Compliance Defensible Disposition: What You Need to Know Randolph Kahn, Esq. Randolph Information Management Compliance Defensible Disposition: What You Need to Know Randolph Kahn, Esq. Randolph Kahn, ESQ. ARMA Boston Chapter March 20, 2014 Commvault Innovate 8

What a Difference a Decade Makes Knowledge is knowing a tomato is a fruit; What a Difference a Decade Makes Knowledge is knowing a tomato is a fruit; Wisdom is not putting it in a fruit salad. “More than 3 years after the Sept. 11 attacks, more than 120, 000 hours of potentially valuable terrorist-related recordings have not yet been translated …and computer problems may have led the bureau to systematically erase some Qaeda recordings…[t]he investigation found that limited storage capacities in the system meant that older tapes had sometimes been deleted automatically to make room for newer materials, even if the recordings had not yet been translated” NY Times on 911 Commission

Is Information Governance Working? • “In an Aug. 15, 2005, voicemail messages addressed to Is Information Governance Working? • “In an Aug. 15, 2005, voicemail messages addressed to company salespeople…” • “…the document written by Dr. Geller doesn’t accurately reflect the company’s position in 2000. In fact, it was not Dr. Geller’s ultimate view either. It was an initial draft for discussion purposes. ” • “In response to a plaintiffs’ attorney’s question, Dr. Geller responded that the statement was “an artifact of an earlier discussion document. ” Wall Street Journal

Why Can’t Most Climb Everest? “I dream of a better tomorrow, where chickens can Why Can’t Most Climb Everest? “I dream of a better tomorrow, where chickens can cross the road and not be questioned about their motives. ” “But databases frequently turn into information dumps, teeming with poorly classified or outdated information. ” Growth at Mc. Kinsey Hindered Use of Data, ” WSJ

Info Volumes Are Everestesque • IDC -2800+ exabytes of new info in 2012 1 Info Volumes Are Everestesque • IDC -2800+ exabytes of new info in 2012 1 exabyte = 50, 000 years of DVD movies A closed mouth gathers no foot. • What about old stuff? IDC predicts storage will increase 44 x in next 10 yrs.

Don’t Let Lower Per GB Costs Fool You Don’t Let Lower Per GB Costs Fool You

Information Value and Risk Gap Over Time • 90% of the world’s information was Information Value and Risk Gap Over Time • 90% of the world’s information was created in the last 2 Yrs. • It costs $18, 000 to do e-discovery on 1 gigabyte • It costs $4 M to store 1 PB CGOC SUMMIT 2013

Changing Mindset About the Lifecycle • • Information has a lifecycle Dead information smells Changing Mindset About the Lifecycle • • Information has a lifecycle Dead information smells Who makes end of life decisions Is it practical to review everything

Is Information Still an Asset? If a wolf can take down a deer from Is Information Still an Asset? If a wolf can take down a deer from either flank, does that make him bambidextrous? • • • 88% have large volumes of legacy info 71% have no idea of the content in stored data 58% are keeping information indefinitely. 79% indicated too much time & effort is spent manually searching & disposing info 58% still rely on employees to decide how to apply corporate policies (i. e. retention, privacy, security) to their information * Source: CIAC Data Explosion Survey http: //www. infoautoclassification. org/survey. php

IT Impact He who laughs last, thinks slowest. “Handling double-digit data growth rates with IT Impact He who laughs last, thinks slowest. “Handling double-digit data growth rates with single -digit budget increases is the lot of most CIOs, according to our third annual Information. Week Analytics State of Enterprise Storage Survey. The amount of data we're actively managing continues to expand at around 20% per year, and we see a long tail of besieged IT staffs dealing with growth rates exceeding 50%. At these levels, most data centers will double storage capacity every two to three years”

Legal & Governance Impact A bartender is just a pharmacist with limited inventory • Legal & Governance Impact A bartender is just a pharmacist with limited inventory • According to IDC, the size of the e. Discovery industry is expected to reach $21. 8 billion in 2011 • “It costs around 20 cents to BUY 1 GB of storage, however, it costs around $3, 500 to REVIEW 1 GB of storage” (AIIM) • Not uncommon for a custodian to have 10 – 50 GB of data • “…organizations paid a low of $750, 000, and a high of $31 Million in connection with the breach response. (Privacy Compliance & Data Security)

Reasonable Way to Deal with Dead Data? • Keep the Dead Daisies forever “There Reasonable Way to Deal with Dead Data? • Keep the Dead Daisies forever “There are three kinds of people – Those who can count and those who can’t. ” • Chuck all Daisies tomorrow • Have people decide • Have technology and people decide

Attributes to Analyze Data • Environmental (e. g. file location, ownership) • File attributes Attributes to Analyze Data • Environmental (e. g. file location, ownership) • File attributes about the file (e. g. file type, age, author) • Content attributes within the file (e. g. keywords, character strings, word proximity, word density)

Should We Let Employees Manage? Employee Understanding of Responsibilities 25% 21% 49. 7 % Should We Let Employees Manage? Employee Understanding of Responsibilities 25% 21% 49. 7 % of all statistics are made up on the spot. 20% 15% 19% 15% 10% 9% 5% 0% What information needs to How information should be Legal Hold and E-Discovery The impact of GRC on them be retained and disposed of responsibilities "GRC, RIM and E-Discovery: State of the Industry, " © 2008, Kahn Consulting, Inc. , www. Kahn. Consulting. Inc. com

Building a Defensible Disposition Plan On the other hand, you have different fingers. Business Building a Defensible Disposition Plan On the other hand, you have different fingers. Business Case- Does addressing chunks make sense Road Map- How to attack the chunks Test- How will the process work in real life Document- Memorialize the process Approval- Get signoff from key constituents

Building a Business Case What should CBA include? – Conservative • Storage only – Building a Business Case What should CBA include? – Conservative • Storage only – Risks? – Liability? – Employee efficiency? – Litigation costs? – Etc. ?

Technology v. Manual Review “I don’t want to achieve immortality through my work, I Technology v. Manual Review “I don’t want to achieve immortality through my work, I want to achieve it through not dying. ” Woody Allen This work presents evidence supporting the contrary position: that a technology-assisted process, in which only a small fraction of the document collection is ever examined by humans, can yield higher recall and/or precision than an exhaustive manual review process, in which the entire document collection is examined and coded by humans. “Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review” Maura R. Grossman, JD. , Ph. D. and Gordon V. Cormack, Ph. D.

What Do Regulators & Courts Think? I used to be indecisive. Now I’m not What Do Regulators & Courts Think? I used to be indecisive. Now I’m not sure. “Computer-assisted review appears to be better than the available alternatives, and thus should be used in appropriate cases. While this Court recognizes that computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection…Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer assisted review. Judge Andrew Peck , Moore v. Publicis Groupe, February 22, 2012

What Do Regulators & Courts Think? “If 2012 was the year of predictive coding What Do Regulators & Courts Think? “If 2012 was the year of predictive coding or technology-assisted review, 2013 and ’ 14 seems to be the year of information governance. … it really would be helpful if systems were in place to get rid of the junk. Get rid of the ‘what time are we going to lunch’ emails that nobody bothers to delete, because that would help reduce the effort and cost of discovery whenever it’s needed. ” Judge Andrew Peck , Legal Tech NY, January 2013

Places & Time to Start • Places War does not determine who is right Places & Time to Start • Places War does not determine who is right – only who is left. – Back-up, Legacy systems, email, shared drive • Time – Data migration, system retirement, new implementation According to Gartner, Cloud Services will be $102 billion in 2012

Fixing Back is Different than Fixing Forward • Defensible Disposition • Different chunks different Fixing Back is Different than Fixing Forward • Defensible Disposition • Different chunks different diligence • Process to get rid on info without doing it the old fashioned way – Its the modern day RIM – Built to mater to IT – But a bit scary to legal

Data Universe New Information Governance Paradigm Data Universe New Information Governance Paradigm

Build a Brighter Future Impact Current State Future State Storage Costs from Over Retention Build a Brighter Future Impact Current State Future State Storage Costs from Over Retention High Low Multiple Records’ Systems Costs High Low Compliance Costs High Low Employee Efficiency and Productivity Due to Managing Records and/or Over Retention Low Medium/High e. Discovery Cost High Medium/Low Information Governance Risk Medium/High Low Privacy Risk Medium/High Medium/Low e. Discovery Risk Medium/High Medium/Low Information Security Risk Medium/High Medium/Low Medium Low High Low Technology Costs for Managing Records Over Time Technology Costs for Managing Non-Records Over Time

Conclusions The last thing I want to do is hurt you. But it's still Conclusions The last thing I want to do is hurt you. But it's still on the list. 1. 2. 3. 4. Be serious about the lifecycle Chucking is freeing and valuable Clean up the past Apply simpler rules to all stuff going forward 5. Celebrate Climbing a lesser mountain 6. Leaner is more efficient Randolph Kahn 847 -899 -8487 [email protected] Consulting. Inc. com