Have You Thought About the Impact of eDiscovery on Your Data Management Strategy?

When thinking about data management it is unlikely that your first thought is about legal requirements. Nevertheless, the legal side of data management must be considered in this day and age of regulatory compliance.

To some, the sheer volume and nature of all the sweeping regulations are too mind-boggling to fully digest. But with the EU GDPR quickly coming down tracks, it makes sense to discuss a few of the issues that will impact your databases and data management policies.

First of all, ensuring compliance requires a collaborative effort between business users, IT, and your legal department. This can prove to be a challenge because these three disparate groups are quite distinct and rarely communicate collectively. IT talks to legal only when they have to – and that is usually just to get approval on contract language for software purchase. IT and business communicate regularly (at least they should), but perhaps not as effectively as they might. But all three are required:

  • Business: must understand the legal requirements imposed on their data and systems as dictated in regulations
  • Legal: must be involved to interpret the legal language of the regulations and ensure that the business is taking proper steps to protect itself
  • IT: must be involved to implement the policies and procedures to enact the technology to support the regulatory mandates

Organizations need to map and categorize their business data in accordance with how each data element is impacted by regulations. We need to be able to answer questions like: Which data elements are under the control of which regulation? And what does the regulation require in the way we manage that data?

Once mapped, controls and policies need to be enacted that enforce compliance with the pertinent regulations. This can require better protection and security, enforce longer data retention periods, impose stricter privacy sanctions, mandate improved data quality practices, and so on.

One of the issues that should be factored into the equation by data management professionals is preparation for e-discovery. Yes, regulations mandate that we retain data longer, but there are rules and regulations that dictate when and how organizations will need to access and produce data that is retained, too. I mean, why keep that data around if there is no need ever to see it again?

The ability to produce retained data upon request is typically driven by lawsuits. You probably can recall examples of courtroom showdowns on television where truckloads of paper documents were required during the discovery process of the lawsuit. But times have changed. Increasingly, the data required during the discovery process is electronic, not written. That is, the data is stored on a computer, and much of that data is stored in a database management system.

Which brings me to the Federal Rules of Civil Procedure (FRCP), which are the rules used by US district courts to govern legal proceedings. One of the items in this set of rules dictates policies governing discovery. Discovery is the phase of a lawsuit before the trial occurs during which each party can request documents and other evidence from other parties or can compel the production of evidence.

The FRCP has been modernized and one of the key changes focuses on electronic documents: “A party who produces documents for inspection shall produce them . . . as they are kept in the usual course of business…” So clearly this change compels organizations to improve their ability to produce electronic data.

Another aspect of the FRCP deals with safe harbor from sanctions arising from spoliation. According to this section, “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information as a result of the routine, good faith operation of an electronic information system.” Basically, this section shines a spotlight on the need for organizations to develop a clearly articulated, well-executed, and uniformly enforced records retention program. And that program should include database data. Instituting policies and procedures for how data is treated for long-term retention can provide some level of protection from “adverse inference” rulings arising from spoliation.

There are likely to be additional implications arising from manipulating your data management standards to comply with the FRCP, especially when coupled with industry trends such as big data causing more and more data to be retained, the growing number of data breaches and the ever-increasing regulations being voted into law by federal and state governments. It means that we will be forced to treat data as the corporate asset that it is — instead of just saying that we treat it that way.

Data governance programs are becoming more popular as corporations work to comply with more and stricter governmental regulations. A data governance program oversees the management of the availability, usability, integrity, and security of enterprise data. A sound data governance program includes a governing body or council, a defined set of procedures, and a plan to execute those procedures.

So an organization with a strong data governance practice will have better control over its information. When data management is instituted as an officially sanctioned mandate of an organization data is treated as an asset. That means data elements are defined in business terms, data stewards are assigned, data is modeled and analyzed, metadata is defined, captured and managed, and data is archived for long-term data retention.

All of this should be good news to data professionals who have wanted to better define and use data within their organizations. That is, the laws are finally catching up with what we knew our companies should have been doing all along.

About craig@craigsmullins.com

I'm a data management strategist, researcher, and consultant with over three decades of experience in all facets of database systems development and implementation.
This entry was posted in compliance, data, data breach, Data Growth. Bookmark the permalink.

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