This is a continuation of a series of posts about the Nuix Information Governance Forum, held in June at Palm Beach in Florida.
This session was moderated by Carolyn Betts, marketing director at Nuix. The panel comprised Dan Regard of Intelligent Discovery Solutions, the Nuix CTO Stephen Stewart and Anthony Diana, a partner at Mayer Brown. They had worked together on an urgent extraction of very large volumes of data stored in old archives, with the double ambition of giving discovery for ongoing litigation and defensively deleting surplus material.
The first statistics are impressive enough – 400 searches against 3.1 billion e-mails in 330 TeraBytes, tagging of over 1 million e-mails, remediation of 400 million e-mails and so on. Nuix felt that its estimate of 37 days was not thought credible by the client but was accepted anyway; in fact the job took 45 days – but half-a-billion unexpected e-mails were uncovered in the process. Stephen Stewart emphasised that Nuix does not do this out of the box – “creativity and confidence” were needed, coupled with teamwork between legal, compliance and IT supported by outside lawyers and experts.
Picking key points from a mass of detail:
Litigation counsel had wanted to put all 3.1 billion e-mails in cold storage for 5 years “just in case” of some undefined and unquantifiable risk.
Anthony Diana had urged an incremental approach – first get rid of the empty drives, then the hopelessly corrupt ones and so on, via stepped and reasoned decisions. He was, he said, putting his reputation on the line by challenging the received wisdom about keeping data “just in case”.
The company, though large, was “nimble” and drivers included the mitigation of risk as well as cost-reduction. The results of past litigation were used to inform decision-making about what was important and what was not.
The proper data retention which results from this exercise will completely change the way the company approaches litigation. From now on, the company will be able to say “we don’t have e-mail from that person from that period because that is what our policy says”.
With 750 millions emails deleted, the company said that it wanted to dispose of more.
Dan Regard emphasised that the company had started to make “document kits” which recorded in some detail what had been deleted and why. Affidavits etc had been prepared “as if the company were facing a tribunal today”. It was not the intention to throw away any business records all records needed for litigation.
Anthony Diana said that the company knew that it was going to be challenged in the future. Sanctions cases arise when no one made an informed decision and in this case both the decision and the justification for it had been recorded. Saving everything was not an option and the courts must be educated to accept this.
Here was a practical example of the theory of which one hears so much. It is tempting, for obvious reasons, to focus narrowly on the urgent problem in hand and to defer the apparently less urgent business of getting the corporate house in order. There are obvious merits, however, in dealing with the over-riding long-term issues while the team is assembled, the technology in place and decisions are being made about relevance and importance anyway.