Defensible Disposition: Law Firm Information Governance Symposium, Part II

Bill Tolson

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Defensible disposition, also known in the industry as “defensible disposal” and “defensible deletion,” has been around for several years. It is the process of removing or deleting valueless or unneeded data using documented retention and disposition practices that are consistently followed. Many law firms have been especially slow to adopt data disposal practices for many reasons, including the potential loss of clients due to information unavailability.

The 2017 Law Firm Information Governance Symposium (LFIGS) has published a detailed report on the subject. The report is specifically targeted at law firms, and outlines the issues and challenges law firms face in disposing of both firm and client data. The report also describes the best practices that law firms should adopt in order to create a successful defensible disposition program.

Defensible disposition programs are considered one of the most difficult information governance practices to establish, largely because of the lack of standardized best practices across all industries. The legal industry has faced even more challenges due to the practice of attorneys being trained to keep all information.

With a wealth of experience and insight, the 2017 Defensible Disposition Report was written by law firm information governance, security and records management professionals.

The new LFIGS report describes in detail how law firms should begin an information disposition program. Topics covered in the material include classifying and working with records, ethical attorney rules around client records, state ethics rules and guidelines, client outside counsel guidelines, best practices for the disposition process and suggestions for ways to reduce storage of physical records.

The first — and most difficult — step in starting a data disposition project is getting buy-in from law firm management and stakeholders. This calls for demonstrating a real quantifiable need, as well as calculating a believable projected return on investment (ROI). You’ll have to address certain questions, for example: will the law firm actually save money? If so, how much? Over what period of time? What are the base assumptions? Are they believable? What could the project cost if some (or all) of the assumptions are wrong?

Most humans have an innate tendency to keep information, even though its usefulness and value decrease rapidly. As the raw cost of electronic storage continues to fall, most assume the expense of keeping data is small. Part of starting a successful defensible disposition process is educating end-users about the true cost of retaining huge amounts of valueless information.

For law firms, the obvious expenses include the cost of storage and floor space. However, many don’t take into consideration the cost of backup and disaster recovery planning, or loss of sensitive information due to hacking and internal theft, which can impact firm reputation and customer satisfaction.

Another expense most firms don’t consider is the cost of finding specific information within huge data sets. Over time, this situation can slow information retrieval and negatively affect client satisfaction.

Getting control of firm data so that unneeded information can be disposed of is a real necessity.

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