It’s information governance, stupid

By | 3rd May 2012

With a backward glance to the phrase widely used by President Clinton’s campaign team about the importance of the economy to the US electorate in 1992, in contrast to the campaign of the incumbent President Bush (the first) which relied on achievements in other areas such as foreign policy, I was interested to read the thoughts of Senior Master Whitaker on the subject of Information Governance published in the New Law Journal recently:

A brighter future:  Master Whitaker suggests a framework for improving the practice & reducing the costs of e-discovery, 30 March 2012.

Steven Whitaker is well known as an advocate of the proper use of technology in relation to the ever increasing volume of ESI which lawyers have to confront in modern litigation and his article encapsulates the approach which increasingly the courts will impose on litigants in common law jurisdictions.

The views expressed are not new. Indeed, the Master addressed the plenary session of the Singapore Conference on Electronic Disclosure in August 2011 in these terms. The views are, of course, even older than that as his references to cases such as Earles v Barclays Bank Plc [2009] EWHC 2500, Goodale v Ministry of Justice [2009] EWHC B41 (QB), Nichia Corp v Argos Ltd [2007] EWCA Civ 741 at [47], Jacobs LJ, and Digicel (St Lucia) Limited v Cable & Wireless Plc [2008] EWHC 2522 (Ch) make clear.

Now I will be among the first to recoil from the idea of information governance. The whole concept sounds worthy but dull. But, and this is the important point, without a policy on information governance, it is well nigh impossible for a litigant to provide instructions and data to its lawyers in a managed and organised fashion without causing them to drown in the morass of disorganised bumph (or its electronic equivalent, e-bumph?!).

The Master’s article also suggests that there is another important reason why the courts should question the parties rigorously about the data they seek to disclose. Over the years, many disputes have come to be resolved under English law and in common law jurisdictions at least partly because of the splendid flexibility of English law and its prevalence in large parts of the commercial world, but the Master warns that with the rise of civil law jurisdictions such as the EU and China, any perceived or actual over-reliance on a process (discovery/disclosure) which is expensive and disorganised is likely to lead to less litigation under English law and its procedural rules if those rules are perceived to be unnecessarily demanding and expensive.

Lord Woolf did away with the train of enquiry discovery, but the Master fears that this is coming back because of the challenges which disclosure of ESI presents and thinks that the courts should do something about it. To quote his conclusion:

“However, the effective management of ESI from creation to maintenance and disposal, combined with effective court intervention, could stem this tide. The adoption of rigorous information governance strategies by businesses will largely eliminate it in the long run.”

His article suggests five areas where steps can be taken: information governance strategy, court scrutiny, embracing technology, proportionality and cooperative, collaborative and transparent disclosure.

I suggest that this article should be compulsory reading for lawyers and their clients, especially those who are or are likely to be serial litigators.

After all, it is Information Governance, stupid!