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Sorting Out How Records Retention and Discovery Rules Apply to Real IT Could Take Another 8 to 10 Years

Synopsis Part 2:  Sorting Out How Records Retention and Discovery Rules Apply to Real IT Could Take Another 8 to 10 Years

eDiscovery Spotlight: Interview with Johnnie M. Jackson, Jr, former VP
and General Counsel for Olin Corporation and currently Lead Director of
the Advisory Board for ESI Strategies, New York, NY (Part 2 of 3, Part 1 of 3)

By K.E.H. Polanski writing for dcig.com
www.dcig.com

Kelly:  When we last talked, you stated that it is important that the General Counsel (GC) and the CIO need to talk to each other and work together on weighing records retention cost against company risk.  Why does this seem to be so hard in most organizations?

Johnnie:  It is also important to understand that the GC and the CIO have very different views of the world – they don’t always understand that, and that can lead to miscommunications and problems really understanding the other’s needs.  CIOs come from the point of view that they need to keep the systems going 24/7 and they are very sensitive to costs and demands on manpower.  A GC may have a totally different point of view; for example, “we have a legal problem, here’s what I want, do it.”  For them, information systems are a tool and understanding the tool is not all that important.  The GC either gets what he or she wants or not, and they don’t care how. The reality is, however, if each spent just a little more time trying to understand the others needs and what could go wrong, so many problems that do pop up could be avoided.

Let me give you an example of what I mean.  An IT professional thinks in terms of 1’s and 0’s, on or off, black or white.  To Legal Counsel, in contrast, there are no absolutes.  This person is going to say words like reasonable, best effort and good faith.  None of which translates easily into IT activity.  A GC is very used to gray areas.  And from an IT professional’s point of view, someone from the GC’s office only shows up when there is trouble so they are already on the defensive.  GCs also have the weight in a company to force action.  All of which raises the blood pressure of those in the IT department, and none of which breeds open communication. Both sides are usually frustrated.  Both sides are trying, and are well intentioned, but they just don’t always speak the same language. They need to have more lunches so they can get to know how each other thinks.
 
Kelly:  What’s the point of view of the courts in all of this?

Johnnie:  I think Judges are in the position of trying to learn about eDiscovery just as practicing lawyers are trying to learn.  They are still sorting it all out and are applying the traditional standards of what is reasonable – they are doing the best they can.  What is important is that the standards are evolving.  I would guess that it’s going to take another 8 to 10 years to sort it all out.

Kelly:  So how do people work all this out?  What would you advise?

Johnnie:  The good news in all of this is that GCs and CIOs really are talking more.   My advice to CIOs and GCs and those who work for them is to set the tone within your organizations.  Take a step back, figure out how you want to run your business, and work together from there to determine how you need to manage your records.  Determine what makes business sense for YOUR organization.  CIOs need to take the time to understand what the legal department needs, for example, when it requests a legal hold and legal needs to understand how the IT systems work at least to the point of knowing how the legal hold will be managed from the IT perspective and where the problems – such as automatic tape rotation and deletions –  could defeat the intent of the legal hold.

Part 3 and 3 of DCIGs interview with Mr. JM “Johnnie” Jackson will appear later this month.

If you would like to communicate with him directly, he can be reached at jjackson (at) esistrategies.net or in his Stamford, CT office at 203-353-9493.

DCIG, Inc publishes weekly interviews with legal professionals; click here for more eDiscovery interviews or sign up for the feed.

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