This is the second blog in our series regarding the obligations
to preserve, identify and collect all relevant and material records
in litigation or during an investigation. Earlier this year we
wrote about the importance of preservation and the serious
consequences that may be felt by organizations for their failure to
comply with their obligations. This second blog focuses on
When litigation is commenced or a production order is issued,
clients frequently find themselves scrambling to identify the
individuals involved with the issues under review and location of
the relevant electronic information. Where employees have departed
or the issues are historical, locating electronic information can
be particularly problematic. It is usually during this phase that
an organization realizes that the patchwork of policies regarding
document organization, document retention, and BYOB do little to
assist legal counsel and IT with satisfying the organization's
legal obligations to identify relevant information.
In the age of "big data", with many organizations
feeling the constant threat of security breaches and struggling to
stay on top of the numerous privacy concerns, it is very important
for organizations to have in place systems to effectively manage
their information. Studies suggest that management of information
is impacting business productivity and creating costs and
liabilities for organizations. (Charles R. Ragan, Information
Governance: It's a Duty and It's Smart Business, 19
Rich J.L & Tech 12 (2013) [Regan, Information
Over the past several years, an area called "information
governance" has developed to assist organizations in managing
their information. Information governance has been described as a
holistic approach to managing and leveraging information for
business benefits and encompasses information quality, information
protection and information life cycle management (IBM's
definition as per Judith R. Davis, Information Governance as
Holistic Approach to Managing and Levering Information 1
A well-functioning information governance program will involve
personnel from numerous different departments including business
leaders, legal, IT, internal audit, risk and compliance, records
and information managers, and security. Once implemented,
an organization should find that, among other benefits, valuable
information is reliably and readily accessible; confidential and
proprietary information is protected; the costs of keeping
information is optimized; and the organization avoids substantial
risk of failing to retain information in accordance with legal
regulations (Regan, Information Governance).
While the failure to implement proper information governance
systems has not been considered in Canada, a United States court
has suggested that directors' obligations to a corporation
include a duty to attempt in good faith to assure that a corporate
information and reporting system, which the board concludes is
adequate, exists, and that the failure to do so under some
circumstances may, in theory, at least, render a director liable
for losses caused by non-compliance with applicable legal standards
(Caremark Int'l Inc Derivative litigation, 698 A 2d
956 (Del Ch 1996)).
Thus, organizations are well advised to implement an effective
information governance strategy as soon as possible.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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