August 11, 2014

Preparing for Board Information Discovery Requests

In a perfect world, you would never need to inform your directors that their communications and materials are subject to a discovery request. However, in the real world, it happens, and be assured that it’s never a pleasant experience – even under the best of circumstances. This Nelson Mullins blog provides a checklist of issues to consider to minimize the negative implications of such a request:

Some issues to consider as you explore information governance, litigation readiness and the Board:

– Information governance policies.  What types of Board related information might be subject to corporate information governance polices?  How are these policies and any requirements communicated to the Board?

– BYOD (Bring Your Own Device)- in specific.  Do Board members use their own personal devices to receive Board-related information and communicate in connection with that information?  If yes, consider whether user guidelines and device registration requirements may be appropriate.

– Commingled information.  Have Board members been informed about possible risks of commingling Board information with other business or personal information?  Do they understand that if they save or download Board information to personal devices, systems or email accounts, such information or communications might come under scrutiny and be discoverable?

– E-books, Board portals.  Does your Board use these? If yes, consider: encryption and security requirements.

– Avoid storing unique information on personal devices or systems. Consider implementing practices to centralize Board information, and to design e-Board books and Board portals so that there is nothing unique on an e-Board book or device that is not on a centralized server.

– Communicate, train, acknowledge and improve.  Train Board members on information governance expectations, risks and requirements.

See this associated Inside Counsel article for a more detailed discussion of these considerations.

Implementing an Information Governance Program

Management of board information – whether electronic or print – and including distribution, retention and destruction of emails, draft minutes and other materials, should be just one aspect of a comprehensive information management approach. In addition to realistically characterizing less-than-ideal, but common, records management practices, this Mayer Brown memo about establishing an information governance program provides helpful tips for establishing a best practice program that can minimize the risks and costs associated with the lack of a comprehensive, coordinated approach.

Access more memos, samples and other helpful resources in our “Document Retention/Destruction” and “Data Security” Practice Areas.

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:

– Study: CEO Succession Planning Preparedness Lags Importance
– Should Boards Have Technology Committees?
– Delaware’s Unclaimed Property Voluntary Disclosure Program: June 30th Deadline!
– Study: IPO Companies Have More Freedom on Governance Practices
– New Intrastate Offering Exemptions: Not Useful

– by Randi Val Morrison