KM and legal concerns #question


andregalitsky@...
 

Some of my potential clients have expressed reservations about implementing a KM system due to legal concerns.  They want to capture and organize knowledge within their organization, but they don't want to capture things that would create legal problems in case of litigation.   There is a concern that some KM artifacts could be uncovered during discovery and used as evidence.  Even if the evidence is non-consequential, it would still create more work for the in-house legal team.


I was just wondering how you may have dealt with this concern in your prior engagements.   Thank you.


Andre


Simard, Albert <albert.simard@...>
 

Andre -

 

KM has absolutely nothing to do with the legal requirements of discovery.   As soon as anyone makes a note, writes something down, or enters it into their computer, it becomes explicit.  It exists and is subject to discovery.  Even we have to submit original classified or designated content in response to an Access to Information request and indicate the level of clearance required for the person handling the document and the legal reason for redacting (very specific) elements.  In the private sector, people have gone to jail for destroying personal files after a discovery notice was issued.  The only way to limit legal liability is to not write anything down (somewhat impractical) or have legally defendable information management policies in place ( and followed) that call for disposal of content (including e-mails) after relatively short retention periods.  Security is the antithesis of knowledge sharing but in defence, financial, or legal organizations, it trumps knowledge management every time.

 

This is conceptually the same problem that we have at Defence Research & Development Canada.  Our research ranges from open to highly classified.  And we are subject to legally binding access to information requests.  The not inconsequential challenge is to balance security requirements with openness and sharing.

 

Physically, we use three air-gapped servers for classified, internal, and open documents.  Access to each is controlled at an appropriate level.  Within each server, we also control access to individual sites according their sensitivity.  Then, each document is also classified or designated according to its content.  Designated or higher documents only have their title listed; access requires contacting the author or owner.  Finally, our (somewhat complicated) document template includes provisions for designating or classifying individual pages or paragraphs.  Of course a page and document are classified according to the highest designation of any part thereof.  This is useful for Access to Information Requests in that it enables us to redact individual bits of a document based on various legal exceptions without having to review every document.  It is also useful for document requests in that it enables us to determine whether the requestor is authorized to see the document. 

 

Knowledge management is a lot like science.  It should not interact with the law.

 

Al Simard

 

From: sikmleaders@... [mailto:sikmleaders@...] On Behalf Of andregalitsky@...
Sent: January-17-14 10:10 AM
To: sikmleaders@...
Subject: [sikmleaders] KM and legal concerns

 

 

Some of my potential clients have expressed reservations about implementing a KM system due to legal concerns.  They want to capture and organize knowledge within their organization, but they don't want to capture things that would create legal problems in case of litigation.   There is a concern that some KM artifacts could be uncovered during discovery and used as evidence.  Even if the evidence is non-consequential, it would still create more work for the in-house legal team.

 

I was just wondering how you may have dealt with this concern in your prior engagements.   Thank you.

 

Andre


Bill Dixon
 

Implementing a formal KM strategy is also an opportunity to reinforce records retention rules/practices.  This is a great opportunity - not necessarily an impediment to instilling KM practices.  

Accounting firms are also concerned about records discovery and the big 4 have been involved in KM forever.

BD 


On Jan 17, 2014, at 10:09 AM, <andregalitsky@...> wrote:

 

Some of my potential clients have expressed reservations about implementing a KM system due to legal concerns.  They want to capture and organize knowledge within their organization, but they don't want to capture things that would create legal problems in case of litigation.   There is a concern that some KM artifacts could be uncovered during discovery and used as evidence.  Even if the evidence is non-consequential, it would still create more work for the in-house legal team.


I was just wondering how you may have dealt with this concern in your prior engagements.   Thank you.


Andre


Murray Jennex
 

Bill,
 
I think you make a good point.  I did a study on an engineering organization that did not have a KM strategy and just let KM happen.  The mistake is that engineers kept email as a KM repository with no rules on what should be saved, what should be discarded, and how long it should be kept.  To make a long story short, a lawsuit filed disclosure requesting email and the company settled because they didn't know what was there.  This would have been prevented by a thorough KM strategy that guided what should be kept and in what form. 
 
My 2 cents worth, to continue with Bill's point about it being an opportunity and Al's point that disclosure is a part of life, realize that KM can also create repositories that can save the organization when in litigation.  I think of the situation of patent infringement or parallel research developments in competing companies, a good KM strategy can also support the organization in proving what it knew, who knew it, and when they knew it.  This could be absolutely critical and of course can cut both ways, good and bad.  Still, my gut feeling is that organizations get more sympathy when they have these repositories than when they have nothing and know nothing.
 
Murray Jennex, San Diego State University, editor in chief International Journal of Knowledge Management
 

In a message dated 1/17/2014 4:49:19 P.M. Pacific Standard Time, wm_dixon@... writes:


Implementing a formal KM strategy is also an opportunity to reinforce records retention rules/practices.  This is a great opportunity - not necessarily an impediment to instilling KM practices.  

Accounting firms are also concerned about records discovery and the big 4 have been involved in KM forever.

BD 


On Jan 17, 2014, at 10:09 AM, <andregalitsky@...> wrote:

 

Some of my potential clients have expressed reservations about implementing a KM system due to legal concerns.  They want to capture and organize knowledge within their organization, but they don't want to capture things that would create legal problems in case of litigation.   There is a concern that some KM artifacts could be uncovered during discovery and used as evidence.  Even if the evidence is non-consequential, it would still create more work for the in-house legal team.


I was just wondering how you may have dealt with this concern in your prior engagements.   Thank you.


Andre