Don't Hit The Snooze Button On ESI Management

There’s almost nothing like the words ‘record retention policy’ to quickly put a group of grown adults asleep. If you’re lucky enough to be placed on the team to formulate said policy, you probably wonder who you ticked off and should remove from your holiday card list. Reminds me of the Dilbert where the boss starts a meeting and falls asleep while talking, slams his head on the desk only to wake up and ask what the meeting was about. They all said ‘the records retention policy.’

But hey, some of us actually like putting these policies and strategic plans together... they offer a lot of value when properly implemented.

I actually prefer to use the term ‘ESI Management Policy’ because that’s really where you get the most bang for your buck. While it’s important to know how long to keep certain vital records, almost nobody seems to care about the boxes piled up like the Pyramids in Egypt that you still pay monthly storage fees on. What they care about is the cost to store, identify, collect, review and produce electronically stored information (ESI).

In the old(er) days, the concern wasn’t about volume of ESI, but content. Everyone was concerned about the smoking gun e-mail – the stupid thing written that no one thought would ever see the light of day. While that’s still a major concern in this current era of extremely tight budgets, it’s not just the smoking gun that can cost the company, it’s also the mounting volume. There are real costs that must be identified and properly dealt with and managed via a policy that helps employees care about their own ESI management.

Don’t jump straight to technology for your solution, however. First, understand your company culture, where it is and where it needs to be regarding how employees create, send and store ESI. Second, create a policy that moves your company culture in the direction you want to go. Don’t try to make it all in one step; try the incremental approach. Grabbing for too much at one time only breeds unrest, and unrest breeds non-compliance. The only thing worse than not having an ESI management policy is to have one that no one follows.

Once you get the policy and the employees moving in the right direction, then it’s time to implement technology to help the company achieve its overall goals, which is cost savings through less volume, and, finally, organization of that remaining volume.

In a previous post, I stated that people and technology are both needed and must work together. Those words can be applied to most situations these days, but especially here. Training and buy-in on the part of your employees along with technology will help you achieve your goals.

Legal Savings Needed - STAT!

In early January, I read an interesting piece by Susan Hackett of ACC wherein she laid out a few tips for GC’s on weathering the economic storm. Although things are beginning to look up (for some), lots of questions remain about 2010. Many of our in-house comrades have weathered or are currently going through the budgeting process; the open questions about the upcoming year have made that process almost like shooting at a target in a dark room.

Despite this cloud of uncertainty, it seems there remain a few things that every GC and budgeting lawyer should focus on as we move through the last few months of 2009. During my time as a GC (and admittedly, I’m a list building, check it off, constant evaluator type) I regularly went through some of the exercises below to help determine if our department (and company) was meeting its objectives.

1. In the short view (the next two months), are you going to hit your budget projections? If not, your high-volume, repetitious work could provide the relief you need. There are short-term fixes that can turn into long-term solutions, too … e-discovery, contracts, employment matters, etc. – there are simple measures you can take to generate significant savings quickly.

2. In 2009, there were never-before-felt pressures on legal departments to cut costs, and a response to these pressures was not only expected, it was demanded. Now is a good time to review those measures. What was the impact of cost-cutting on your ability to protect the company from the multitude of risks, known and unknown, that it faces every day?

3. Of the adjustments made during the economic downturn, which are worthy of making a permanent part of your daily practice?

4. Did your department thrive in the current environment or did it just manage to survive? What can you do to enrich the atmosphere during good and bad times?

5. Value has been defined as receiving a solution to a legal problem that addresses that problem for an appropriate cost. Now is the time to conduct a review of the department’s various 2009 initiatives and determine whether value was received for each of those initiatives. If not, there is no better time to fix that problem than budgeting season.

6. Although no one among us likes to think about a layoff once it’s over, now is the time to revisit that event. You have to ask yourself: Was it worth it? Did you really cut costs or did you simply move those costs from one silo to another? If you lost two or three excellent in-house attorneys to a lay-off -- only to replace that expense with an increase in outside counsel fees in order to get the work done -- that reality must be confronted.

7. Did you make appropriate use of outsourcing opportunities? If you are not looking at various ways of using outsourcing (such as contract attorneys), you should.

Of course, these items on this list are just part of the multitude of decisions and thoughts GCs encounter every day, but it really speaks more to the mindset in-house attorneys are moving towards: value. Value is everything in today’s legal landscape, and there are some quantifiable, transparent ways to determine if you’re receiving it.