If an organization is only at the early stages of implementing GARP, can that hurt them in litigation?
I would say no. We always tell our clients to strive for “progress over perfection,” a quote I learned from Terry Coan several years ago. I frankly cannot see how a court could fault an organization for striving to improve its compliance, transparency and availability recordkeeping principles, to name a few. The status of the organization’s program will be discoverable irrespective of the state of your GARP assessment, assuming you have even started one. Yes, the analysis itself may be discoverable if it is not protected by the attorney client privilege, but it may not be relevant. Then, even if it is deemed relevant and discoverable, one could argue that the organization’s recognition of its shortfalls is a step in the right direction. My biggest concern is not whether the organization is planning to implement changes, but whether the organization fails to implement legal holds that could result in spoliation claims. Almost all of the published ediscovery cases deal with spoliation in the face of pending or anticipated litigation or investigations, and not with scrutiny of the status of the organization’s information governance plans.
John Isaza is a California-based attorney and founding partner of the Howett Isaza Law Group, a law firm that specializes in electronic information governance, records management and overall corporate compliance. He may be reached at Jisaza@HiLawGroup.com or follow him on Twitter and LinkedIn.