Who Makes the Decision: Or, why I sometimes feel like Dr. Phil

By Cary J. Calderone, Esquire

Sometimes I miss just being “the lawyer.” Working as a pure lawyer, I outline the facts and the issues, the laws provide the foundation for my analysis and whenever possible, I explain the conclusions we may reach. And, with very few exceptions, that is that.

Largely, the lawyer is focused on the facts, the rules and precedence. There are certain requirements and frequently, there is little room for variance. In this rather new area of Document Retention and Electronic Discovery (“DRED” for short) this is changing.

More frequently the law around DRED has set forth guidelines of “reasonableness” and then, depending on the particular company structure, industry, and the current state of technology, there may be more than one approach that would bring about an acceptable level of risk for the desired legal compliance. With DRED consulting, I have to play the role of a consultant, which means I need to know and understand why things are the way they are on a technological and business level, before I can suggest a path for change. Good lawyers in this space recognize that they have to take on some of the tasks of consultants, even if we do not like it.

So who decides what is reasonable? In practice, a judge would want to see a set of policies that have been created by considering structure, industry, technology, and business needs. As I mentioned in Best Practices for Managing Electronic Data: Chickens or Eggs whatever the policy, it needs to be followed and enforced company-wide for it to withstand legal scrutiny. So now instead of a lawyer dictating the rules, the consultant must elicit information from various department heads and members. Collaboration, which may be a common realm for Dr. Phil lead counseling may not be with the newly enlisted stakeholders in corporate document management, and it is crucial.

Many books and articles that describe best practices for management consulting explain methods and available tools for collaborative creation. And while I believe that “negotiated implementation” a specific form of collaboration brings about higher rates of adoption, i.e., success, too many consultants, management gurus, and how-to books fail to adequately examine and/or describe the people at the table. Let me explain. The best example I have came from a Business School professor Dr. Terri Griffith ( one who focuses on negotiated implementation). She presented an exercise to her class where they were divided into teams and each team was to work together to create a jungle survival plan. Everyone felt they needed to contribute and share their opinions or collaborate. However, in one group, no one asked about the experience and background of their members. It turns out, one student was a Navy SEAL with survival training expertise and the rest of the group members had absolutely no real-world experience in wilderness survival and quite possibly had never even been camping. So, why did everyone need to share their opinions equally in this collaborative exercise?

In the world of document management, we have a minimum of two worlds colliding, and frequently 3 or more. Authors Randolph A. Kahn and Barclay Blair describe 4 quadrants in their highly regarded book Information Nation. We have legal and IT and depending on the size of the organization and the particular industry, perhaps compliance and records management departments. Regardless of the number of people at the table, when it comes to designing a company-wide policy there will be no initial consensus on even the basic policy terms. For example, “Dr. Phil, how long should we keep email?” Legal might say 3 months is plenty of time if it is not something that needs to be retained according to a Records Retention Schedule. Knowledge managers would like to keep good stuff for many years, if not for ever. Most others will have ideas somewhere in between those two extremes.

For negotiated implementation to work best, I believe we need to know the “whys” and realistic limitations of any policy. The “whys” are important because when people know “why” it makes it easier for them to remember and because they can see that their and the organization’s needs have been considered they are more likely to adhere to the policy. Somebody who has made a valid suggestion for improvement feels better knowing it was not adopted because the technology was not able to accomplish it or it was cost-prohibitive, as opposed to feeling like their idea was not seriously considered.

There are many advantages to collaboration, but it may not be necessary or even advisable if you have the document management version of a Navy SEAL in your group. If you do, then the most efficient way to move forward is by starting with their best idea, understanding why it works, and fine-tuning it or not, with your group’s suggestions – these will be based on their needs so even by merely listening you are increasing their motivation for compliance. Dr. Phil might refer to this as “being heard.” It is still negotiated implementation but it is a shortcut to good results and will avoid protracted fruitless meetings and the need for someone to sooth over hurt feelings. We know that department heads who previously were separate and isolated must be involved and sign off on this process, sometimes because the law actually requires it. We know these participants may not have previously worked together or get along very well. So if we can get good results quickly, everyone will benefit by saving the company money and, being able to get away from the document management negotiations table, and back to their separate, primary job functions.