This article examines those technology areas which (as at this version of the guide) are outside of scope. It is included to provide background information on these areas, and might in subsequent issues also provide a springboard for the addition of more information on solutions within these topics.
Litigation Readiness #
A common analogy is that, if litigation support and eDisclosure are the ambulance at the bottom of the cliff, then litigation readiness is the fence at the top that stops you falling over. Litigation readiness is inexorably bound up with a sound Records Management policy, and this in itself is a good efficient business practice. Indeed for some firms in the financial sectors, the demands of Sarbanes Oxley, the Financial Services Act, Basel 2 and MiFID, make a sound records management strategy an essential element of their business. Increasingly, the way in which a business handles electronic data has a value in its own right and that value is being assessed in Merger and Acquisition situations. The demands of the Bribery Act only increase the pressure for organisations to have a good grasp on the control and management of their ESI.
As well as the regulatory and compliance drivers, there are increased risks for firms involved in global transactions and a poor or badly prepared response to litigation can result in significant brand tarnishment, or even the destruction of the company. On a more pragmatic level, there is a good business case for controlling the spiraling costs of eDisclosure, and let us not forget, a key element of the rules changes in both the US and England, was the requirement for lawyers to specifically address the challenges of eDisclosure. That initiative was re-addressed with PD 51U in 2018.
For more information on this topic see the whitepaper stored here.
RIM/Document Retention Policy/GDPR #
As just mentioned, one of the other main elements in this area is that of policy as encapsulated by Records Information Management as a topic title, and Document Retention Policy as a specific concept. Of course what is really meant by a retention policy, is when can you delete or destroy records. That being said, a rational policy that at least removes all the superfluous duplicate copies of emails and other ESI items, does pay dividends once litigation is underway and you have to collect and process all of those individual files.
The main priority in this area is to ensure you are doing the best you can to conform to the relevant legislation, so I would advise users to approach their normal provider of legal advice for guidance.
A brief mention of GDPR. The UK made GDPR law in May 2018. At the time of writing, (Mar 2021) the situation around BREXIT is still confused, so the adequacy of the UK data protection standard as measured against the EU in unknown, though it does seem as if the UK will be deemed by the EU to have an “adequate” standard of data protection. Adequate is actually a level that very few countries achieve, so this will be a significant step forward should it be ratified.
There is an increasing awareness of how the level of data management required to comply with GDPR, also overlaps with litigation readiness and overall good practice.
As rule of thumb, if your matter is within the jurisdiction on England and Wales you should aim to store your data with a supplier who’s servers are based in the UK. If you have EU data, you might have to consider storing the data in an EU location, depending on the outcome of BREXIT.
NOTE: Another BD opportunity
Did I just hear someone say they wanted proactive legal advice on industry specific areas so I can show how much I know about your business and how I might help when it comes to litigation?
Email Archiving #
In a way, this is a Ronseal title, in that it does what it says on the tin, that is, these are systems that archive email. At a very high level the choices on offer mainly fall between having an in-house system, or using an external “cloud” based provider. Again at a high level, the first generation of offerings seem to be based around the in-house option, with more sophisticated functions and pricing coming for the second generation of cloud based products.