Managing document and data retention within legal departments: GC Forum discussion

Document and data retention can be problematic in many legal departments as lawyers grapple with vast quantities of paperwork and electronic records. Monitoring the flow of data within the organization and knowing what to keep and how best to store it can be daunting.

Legal leaders from across Canada gathered at a meeting of the GC Forum last week to discuss this issue and to share ideas for creating more efficient document and data retention policies and practices within their departments. Among the participants, Frédéric Duguay, general counsel and corporate secretary at Canada Infrastructure Bank, and Marlon Hylton, CEO and senior counsel at INNOV-8 Data Counsel and INNOV-8 Legal Inc. both shared their views.

“To be properly managed, information has to be properly classified, it has to be properly retained, it has to be easily accessible and managed over its lifecycle so you’re not unnecessarily retaining information that is no longer valuable to your organization,” says Duguay, in an interview after the GC Forum event. “We need to properly identify what our crown jewels are in terms of our information assets.”

As a young Crown corporation which has only been in operation since 2018, Canada Infrastructure Bank does not have the issue of legacy programs or excessive paperwork that often plagues older organizations. However, Duguay has been scaling up his department’s electronic records using modern IT infrastructure for the past 18 months.

“It’s a continuous learning experience for us, particularly in terms of how we define our procedures and in terms of how we try to operationalize those within the organization through IT solutions and so on,” says Duguay. As a Crown corporation, CIB is subject to the Library and Archives of Canada Act which means records can never be destroyed by the corporation due to their historical value, so Duguay has to keep this in mind as he navigates the document management process.

Duguay recommends establishing a working group of “information owners” from different business functions throughout the organization.

“Legal counsel may know the organization well but you don’t necessarily know all the information that’s being created across all the functional areas of your organization, so you need to consult very closely with different information owners to understand the data they’re creating,” says Duguay. “You won’t be able to develop a comprehensive information retention schedule or a proper change management plan without first knowing who within your organization really controls data, creates data, and where this data resides.”

 Also speaking in an interview following the GC Forum, Hylton agrees that document management should really be viewed as an enterprise issue, not just a legal department issue. He recommends bringing all stakeholders to the table and conducting a risk assessment to determine the best place to start establishing an overall plan for the organization.

In-house counsel tend to struggle because they often view the challenge as being about a policy or a set of policies, says Hylton.

“Policies don’t really solve the issue,” he says. “If those policies are not followed, if they don’t have the right input from the right stakeholders and if they’re not implemented very very carefully, they can actually do more harm than good.” Addressing the issue in terms of information economics is a useful strategy, Hylton suggests.

“We’re setting out to maximize the value of our organization’s information while at the same time minimizing legal and regulatory risks involved with having that information and using that information, and how those things interplay with one another,” he says.

Information governance is the first step in the e-discovery process to put a company in the best possible position when litigation arises, in Hylton’s view.

“If you don’t know where your information really is, and you don’t know who has had it and who has access, it can be a very costly exercise in the face of a crisis,” says Hylton. “What typically happens is organizations aren’t quite where they should be in terms of information governance so when litigation arises, the process tends to be quite ad hoc and ineffifcient.”

Last week’s discussion of the GC Forum was the first in the 12@12 series which aims to bring together up to 12 general counsel at 12:00 pm ET for an hour-long conversation about a single topic of interest.

GC Forum is a group of general counsel, chief legal officers and senior in-house counsel who come together to connect, share and learn from one another in an informal setting. It was founded by Peter Nguyen, SVP legal, associate general counsel and assistant corporate secretary at Descartes Systems Group.