It’s like your mother told you: Be careful what you say and where you say it, or it will come back to haunt you. Anyone involved in enterprise communications, information governance and e-discovery processes know this all too well. Only now the stakes are higher — think audits, fines and investigations — for not saving all those social bits and bytes.
While scandals and legal cases centering on email, social media and text messages make headlines every day (who knew email protocol could potentially derail a Presidential campaign?) most enterprises are woefully unprepared to deal with a situation where communications data is missing or hard to find, has been tampered with, or presents unfavorable evidence. Even today’s smartest organizations are finding themselves playing a fast-paced game of catch-up.
Business analytics experts with Deloitte point out that in the event of litigation or a regulatory inquiry, the costs of discovery can run into the “tens of millions of dollars.” Yet according to AIIM, only 15 percent of 2015 ECM survey respondents feel they have “robust, enterprise-wide information governance policies in place” and the survey results tell a similar story about the adoption of technology solutions for archiving communications and automating e-discovery.
During my day to day work, I'm often asked about the requirements for archiving new communication types such as social media and mobile messaging. It surprises me that customers rarely ask why they should.
Let's take a look at why, when it comes to archiving and records retention, the better approach to follow is best practices that go beyond “must-haves” or regulatory requirements. As Forrester’s Cheryl McKinnon puts it, information governance isn’t just about capturing, sorting and managing data: “it is — more importantly — about instilling trust in the data and communication we use to run our businesses.”
The Way We Communicate is Changing
Data is growing. Fast. According to IBM’s oft-quoted statistic on big data, “Ninety percent of the data in the world today has been created in the last two years alone.” What’s sometimes forgotten is that the mediums in which this data is being produced are emerging and growing just as rapidly. Conversations are now taking place on a multitude of platforms, far beyond “traditional” email. New communications tools like social media, instant messaging, websites, blogs and text messages are gaining wider adoption every day, and while this represents a massive opportunity for individuals and businesses to speak and be heard like never before, the benefits come with trade-offs.
Are We Ready For It?
A statistic shared at this year’s Legal Tech New York conference revealed that 26 percent of litigation cases now involve mobile data, with similar trends being reported for social media. The challenge that arises in both of these scenarios is that the mobile or social provider does not have the same duties to preserve the data as the corporations they serve. This misalignment of interests means that counsel and their technology counterparts are typically left to discover and reproduce the data for themselves — often through painful and expensive forensic reconstruction — in order to meet basic subpoena demands.
Certainly not the best use of “billable hours,” right?
The other challenge is that once a firm begins to archive this data (usually as a result of being “burned” in the past), the way in which the content is captured and preserved often falls short of the court’s demands.
Legacy systems designed for email can’t keep up with the ever-growing variety of electronic communication platforms, resulting in businesses forcing a fit where it doesn’t belong. This means posts, tweets, likes or texts are shoehorned into the form of an email, stripping them of their forensic integrity and chain of custody, often causing them to be displayed and reviewed out of context. This is no small detail, as this lack of metadata (the forensic information attached to the item) can call the integrity — and therefore the defensibility — of the file into question, such that it may inadmissible in court. It can also create inefficiencies in storage, production and review, driving up costs for Legal and IT, resulting in many late nights at the office.
Better Decisions Ahead
If you adopt a technology solution that’s been built with these considerations in mind, data is captured in its native format. Reviewers can interact with communications content in more useful and meaningful ways, with the ability to view the metadata, electronic chain of custody and entire conversations as they unfolded.
There’s no need now to pull out what hair you may have left. When more complete and accurate pictures are presented, better business decisions can be made. It’s a way to future-proof your investments, your communications and your people, and is an important component of building brand trust, creating a more customer-oriented business model, preserving enterprise wisdom, and mining data for insight and innovation.
Title image by Jordan Sanchez