The Information Nation Warrior: An Introduction

It’s a sunny Friday afternoon and you’re sitting at your desk, wondering if you should slip out a bit early to beat the traffic. Suddenly, your boss appears. He has a concerned look on his face. He makes a bit of small talk, and then out it comes:

“I was reading the Business Journal this morning and there was a story about a class action lawsuit filed by a group of customers who say that an online retailer charged them for a bunch of stuff they didn’t order. The customers say they clicked ‘no’ on a pop-up window, but the company says they clicked ‘yes.’ Is that something that could ever happen to us?”

After valiantly fighting the temptation to simply say, “No, of course not,” and enjoy a peaceful weekend, what is the right response?

Can you answer the question? If so, what kind of guidance can you provide? Where do you go for the information you need? Who do you talk to? Is there a clear answer?

If you are in information technology (IT), you might respond with an explanation of how the Web works, how your website is structured, and how capturing a user’s “click” on a “Buy Now” button all depends on the script that is used. But do you know how long this information is retained, if it is retained at all, where it is retained, and whether or not the courts would consider it acceptable evidence?

If you are an attorney, you might explore the general acceptance of “click-wrap” or “click-through” agreements, or you might answer that case law around such issues is constantly evolving and it is difficult to predict precisely what may happen in a given case in a given jurisdiction. But have you ever talked to IT about how they structured and built your website and why they made the decisions they did?

If you are a business manager, you might talk about how the website is structured to provide the user with a seamless user experience and to minimize the number of times a user has to click in order to buy. But did you ever run the design of the website by the company’s attorney and get her feedback on privacy, electronic contracting, and other issues?

If you are in records management, you might reply that you are in the process of updating the retention schedule to address all types of electronic information and, once that is completed, webpages will be included in the schedule. But does IT have any idea that the retention schedule exists and have you talked to them about the tools that might be needed to capture and store this kind of information?

In all likelihood, neither you nor anyone else in your organization could provide a complete answer to this question on your own. The answer is complex and requires a combination of IT, legal, business, and records management expertise. It requires a breadth of knowledge and training that any one professional in any of those areas likely does not possess.

An organization’s ability to correctly anticipate and answer questions like this one increasingly means the difference between winning and losing when it comes to information management. As a result, individuals from all areas of the enterprise are today being asked to play a greater role in the development, implementation, and administration of information management programs.

So, how do you answer your boss’s question?

The very fact that she is asking you the question means that like it or not you have a new line in your job description. You are being asked to bring your background and expertise to bear on new information management challenges. There are some areas of information management that you have a good grasp on and others where you have gaps. You need to step back and understand the information management challenge in a holistic way. You need to know who to talk to, where to go, and how to get answers to help you succeed.

You need to become an Information Nation Warrior.

Your Changing Information Management Reality

“Policies exist, are continually updated, but not strictly enforced.”

“Management has a hard time keeping up with changing technology that is put in place.”

“We have a long way to go. There is no formal policy across the organization.”

Information Management Compliance Survey, AIIM International and Kahn Consulting, Inc., April 2004

A senior engineer at a large manufacturing company is fired. The engineer, believing that he was treated unfairly, sues for wrongful termination. In preparing for the trial, the engineer requests that his former employer produce thousands of email messages and related digital documents relevant to his case.

The judge orders the company to produce the information. However, much of the email is months old, has been moved off of the company’s active systems, and only exists on backup systems. To make matters worse, the company discovers that many of the relevant backup tapes have been overwritten as part of a routine tape recycling procedure.

The company is forced to go back to the judge and tell her that most of the email requested has been destroyed, and that it will cost thousands of dollars to recover the remainder. The judge is not pleased. She views the company’s failure to preserve and produce the digital evidence as irresponsible, a violation of an obligation to the court that, at the least, unfairly impacts the other litigant. In fact, she takes the view that the failure was part of a deliberate attempt to destroy incriminating evidence, thereby frustrating the judicial process.

She sanctions the company and rules for the engineer. The firm takes a seven-figure hit.

The company is stunned. It conducts a “what went wrong?” audit, and finds out that:

• The records management coordinator in the engineering department had published a policy that addressed the retention of email messages. However, employees had received no training or tools to actually enable them to comply with the policy. That was planned in the next budget cycle.

• In-house counsel had prepared a “Legal Hold” notice describing how information should be managed in the event of litigation, but it had only been distributed to some attorneys, a records manager, and a few employees.

• The email administrator in IT thought that as long as he had a written backup plan and stuck to it, he was avoiding any legal problems.

• For months the fired engineer’s boss had been “papering the file” on the engineer, preparing for the day he may need to take action. The boss kept this meticulously organized treasure trove of email and other digital documents on a shared network drive that only he knew about.

• There had been no communication among personnel in IT, legal, records management, or business management about the case and what, if anything, should be done from an information management perspective.

Seemingly, nobody in this case completely understood his/her information management role. Nobody understood the role of those around him or her, or how each person’s role was interdependent. The company learned, albeit too late, that it was failing in IMC. Cases just like this happen every day in organizations just like yours.

The Information Management Compliance Battle