The C-Level Nightmare-Do You Know What You Do Not Know?

Copyright ©  Cary J. Calderone 2011

Is this your CEO, CTO, or, General Counsel?

This post goes out to all those C-Levels who have not approved pro-active information management and DRED work because, "they can just search and find what they need when they have to."  For almost any attorney or e-discovery professional with experience, this cavalier attitude causes a  LOL moment.   We also call this approach, "head in the sand," or sometimes, "ignorance is bliss...until it's not."   After the 9-11  attacks, when the Department of Homeland Security was created, I remember Secretary of Defense, Donald Rumsfeld, speaking about 3 things: 1)  What you know as fact,  2)  What you do not know but can research and discover and, 3)  What you do not know, you do not know.  C-Levels who think they will just find what they need, when they have not tested their approach under the threat of pending litigation, are in the last category.  They do not know, what they do not know.   Not convinced?  Then please consider these items:

• In all likelihood, you have relevant data in a legacy system or proprietary repository that may not be touched by your search tool.  Even the best technology has to be pointed in the right direction.    
• You have data that should not be touched by your search tool because it will violate a privacy policy.  
• The more data you have to search, the more it will cost you.  This is true even if 99% of the data is ultimately not relevant to the case at hand. 
• The more data you have, the more likely your search results will be mediocre.  Is mediocre acceptable when setting up a strategy to prosecute or defend a legal matter?
• Your search plan will probably not adequately cover home computers, laptops, iPhones, or that 32 gig flash drive dangling from your employee's key chain, let alone all those employee posts on Facebook.

The end result will not be pleasant.  You will be faced with substantial costs before you even consider the potential damages to an adverse judgement.

Even a basic DRED assessment can help let you begin to know, what you do not know.  It is not hard to discover if you know who to ask, what to ask, and, where to look.  I have never met with a general counsel for this assessment (I should call it DREAD because it describes the look on their face) who did not pay close attention and thank me profusely for what I shared with them.  Now you, even as a C-Level, may still not know, or, care to know the dirty details, but your future opposing counsel most certainly will.  Is that when you want to find out that you have ten years of backup tapes with relevant data stored in a closet?  I didn't think so...