Legacy Disposition Program Series: Article Two—Tangible First Steps

This article is a continuation of the Legacy Disposition White Paper article series. Where article one focused on establishing the basics—defining various disposition strategies, highlighting the importance of implementing said strategies in a firm’s IG environment, and walking through the steps leading up to implementation; this article will provide tangible steps for starting a disposition initiative of your very own. Keep in mind that a disposition program is not “one size fits all,” and the steps below (and really, from this article on) should be approached with that in mind.

In the last article we emphasized the importance of identifying a program sponsor and all the benefits that come along with working in close conjunction with them. Additionally, an effective program sponsor can determine the firm’s appetite for risk and help fine-tune a disposition program to fit your organization. In this article we will discuss:

• How to frame your program to best address firm priorities
• Tips on determining your information environment
• How to identify a sponsor and work with them to scope out your program
• Early interdepartmental alliances that can be instrumental in driving your program forward early on
• How to measure success by properly identifying key metrics and communicating return on investment

As with any initiative you wish to start, you need to do your homework and build a strategy around it. Before approaching your program sponsor, identify and assess what is driving your need and desire to implement a disposition program. While we, as IG practitioners, appreciate the multiple benefits to be reaped from proper information management, other stakeholders (and those who will be instrumental in endorsing and supporting your program) may not independently see this and will need to be shown. Some examples to consider: cost savings may resonate most with the leadership team. Or perhaps your firm’s clients are mandating specific rules regarding retention as they consider the risk of over-retaining personal information in the age of GDPR, CCPA, and other regulations. Maybe your CIO and IT department are focused on the strain on systems from the exponential growth of electronic data. Maybe you are shifting systems from on-prem to the cloud and only wish to migrate active or limited data. Whatever the reason may be, it’s important to understand what motivates your firm’s decision makers (A.K.A. those that hold the purse strings) as well as what resources will be required to start and maintain a successful program. 

Invest some time in learning what information you have, how old it is, and where it is. Then determine what laws, rules, case law, or ethical standards may govern how, and for how long, you must retain it. A data map may have already been created for other efforts, such as privacy or e-discovery, so consulting with the owners of these functions may be a good first step.  Understand what your trigger dates are—for example, for client files, it is most often the matter close date that determines when the retention clock starts ticking. Your firm may have different practices for closing matters and thus may enforce different triggers (e.g., last billed date). Just to make matters more fun, you may also need to consider that this data may not be properly captured or may vary from system to system, so determining an authoritative source can be crucial to success!

This is also a good opportunity to evaluate whether there are any existing firm policies that may impact the program you are trying to build. If you have access to Outside Counsel Guidelines, it may be prudent to do a sampling of those of your firm’s key clients to determine what they require (and if, and by how much, they differ from your internal policies). In addition, privacy policies can also be a good place to start. If getting buy-in to actually execute disposition is proving difficult, it can be helpful to target specific data you should not be retaining, such as PHI/PII. Work with your HIPAA lawyers to gain a full understanding of the requirements of business associate agreements and build that disposition business case into your program.  Some firms have been able to make inroads by targeting that data for disposition as soon as the matter has concluded rather than retain it for the full length of the client file retention period.  From all of these considerations, you can build a baseline message when recruiting your program sponsor.

If it isn’t intuitive who your program sponsor should be, the initial work you’ve done can help point you in the right direction. Given the risk associated with any disposition program, it is not uncommon for the general counsel to serve in that role. However, depending on firm organization and/or culture it may be more effective to engage a COO, CIO, managing partner, or other executive. Approach them with your business case in mind and remember that, at the outset, they might not have a full appreciation of the multiple benefits associated with an established disposition program. You don’t need to have all the answers from the start. because there is much that they will help you define; but you should have your “this is why we should do it” speech in your back pocket and tailored to address what the sponsor values. 

Answering these questions can be very complicated but, nevertheless, are essential to defining your project and thus giving you the best opportunity for success. Once you and your program sponsor are aligned and you have fully defined your project parameters, your next step is one of the first, and perhaps most important, interdepartmental partnerships—that of with your IT department.

It is a rare occurrence to have an abundance of funds at the start of your project to purchase outside solutions; thus, some creativity and out-of-the-box thinking is essential to your success.  There’s a reason why most successful disposition initiatives are closely tied in with a strong relationship with a firm’s IT department—their impact is substantial in a myriad of ways. For example, your IT department has the capability to develop reports that can identify the information considered within the scope of your project, isolate it from the rest of the information owned by your firm, and allow you to manipulate and filter the information, gaining insight into what you are dealing with. They also tend to know “where the bodies are buried” and can help you avoid potential pitfalls by providing historical knowledge of what data should be considered off limits or who is an especially vocal proponent.

When discussing the project’s needs with your IT department, it’s important that you share with them the goals and expectations of the project and work together to determine what key data points can and should be captured (e.g., responsible attorney, matter close date, last access date, area of law, physical vs. electronic, size, etc.). As IT gains an understanding of what you are trying to accomplish, they may even have suggestions for additional relevant data points and how it may be best to capture and present them. Once gathered, these pieces of information can give you a more complete picture of what you have and what you should do. For example, knowing the area of law can allow you to isolate items that are not under consideration (e.g., wills/trusts, trademarks, matters involving a minor, etc.) and filter them out. One approach that has been adopted by some is to take the last access date and if a record has been dormant for a long enough time (say, 20 years), operate under the assumption that the record serves no firm value and can be safely and immediately destroyed without further client input. This can be one approach to address the low-hanging fruit and gain immediate momentum in your disposition efforts (but, as always, consult with your program sponsor to determine if this level of risk is acceptable for your firm. It bears repeating, this is not a one-size-fits-all program!).

In addition, your IT department can aid you by helping keep your project well managed and organized through the creation of a file repository and collaborative team space (network share drives, SharePoint, etc.). IT can also pull relevant data points from a variety of firm repositories such as your records management system, time and billing, active directory, and others and present them in a way that allows you to better analyze your data. For example, we have seen firms experience great success analyzing their electronic data using readily available software tools, such as Space Observer or Tree Size to name a few. There are a lot of moving parts in this project, and success can be had or lost by improper tracking and management of all of them. PowerBI can be a great tool to capture key project components and report on them to stakeholders. Being able to track key metrics and assign projects will be of special use to you and your team (such capabilities are readily available in most collaborative software like MS Teams or Slack). An effective data repository that allows you to memorialize activities and decisions is also important because of the need for an explicit file audit trail. If twenty years down the road, a client demands to know what happened to their files, your ability to provide evidence that you reached out to the client, and they did in fact authorize secure destruction of said files can be the difference between losing them as a client and salvaging the relationship.

By this point, you’ve made good progress by developing your business case, setting forth your goals and objectives, engaging a program sponsor, and collaborating with your IT department—now let’s explore how to identify metrics and communicate a return on investment (ROI). All projects should be monitored and measured, and this disposition project is no different. The best way to demonstrate program success is by developing a series of metrics by which to define it and then reporting them upwards. Ideally, you would begin with the end in mind and identify up front the relevant metrics you’d like to capture to measure the progress and success of your program (i.e., what does your future state look like and how can you prove that you got there?). The most telling metric for a disposition program is cost savings and, consequently, ROI. If tomorrow you destroyed 85,000 boxes and deleted 35TB of data, you should expect to be asked (and be prepared to answer), “How much are we saving?” You must present how the reduction in offsite boxes resulted in a reduction in offsite storage costs or how the deletion of digital data led to an overall reduction in required electronic storage space and a lower IT bill at the end of the year. In addition, the ongoing use and storage of paper requires additional staff to manage it. As your reliance on paper files decreases, there is opportunity to realize staffing efficiencies. However, just because your firm’s management is primarily interested in the bottom line, doesn’t mean you have to stop there when measuring your program’s success. Getting creative with metrics can do a lot to bolster team morale by giving them a better idea of how their own involvement in the program directly contributed to something meaningful for the firm (for a fun example, we converted our destroyed box count into Olympic-sized swimming pools and would have a pizza party for our staff each time we destroyed a full pool). Sometimes it’s hard for an individual to see their accomplishments shine in the overall program scheme, but if you can show how a project that they were directly involved with was being measured, it can go a long way to showing how effective and meaningful their work is. As you are working with your IT department, consider upfront how the data they are pulling for you can assist with the developing and tracking of relevant metrics.

That’s a wrap on article two! We hope you were able to take away some tangible first steps for setting up an effective disposition project, a fundamental and essential aspect of an overall information governance program. We’ve covered how to focus on core firm values to properly frame your pitch, how to audit your informational environment to determine what you’re starting with, how to identify and collaborate effectively with a program sponsor, how to lean on other departments to account for a small program budget, and how to measure success with proper metrics. In our next article, we will discuss the next steps in the disposition program—appraising responsible attorneys of program goals and their part in it, other departmental alliances that are crucial to success, and the first barrage of outgoing letters to clients (and, more importantly, what to say in it and expect from it). Thanks for joining us.