Today I’ve been peeking in on the latest developments (i.e., congressional hearings) in the slow motion car crash that is the Toyota story. Another day, another federal investigation, another civil lawsuit, and another criminal investigation. Things seem only to be getting worse for the company, with millions of vehicles recalled and legal woes mounting.
It can’t be much fun to be a lawyer or IT professional at the company right now. They are responding to multiple document requests from multiple parties (with 100,000 pages already produced to the House Energy and Commerce Committee alone), all the while caught in the wringer of the 24-hour news cycle.
What are regulatory agencies, federal prosecutors, and litigators looking for in all these documents? Certainly they are looking for evidence that will reveal facts about vehicle problems and their causes. What they are really hoping to find, however, is the headline-worthy “smoking gun.” The document that appears to inadvertently reveal the truth about the company, its actions, and even its very character. The document that puts the case away.
Sometimes smoking guns truly exist, and the true intentions of an individual or even an entire company can be revealed by a piece of evidence. However, it is rarely that simple. Here’s why.
First, so many business records today are contextual. In other words, they are difficult to understand without having a full picture of the context surrounding their creation. Some communication mediums are inherently contextual – like email. For example, an email message from me to you that reads, “Sure, sounds good” doesn’t make much sense without the email messages that came before it. Anyone who has failed at humor in an email message understands implicitly why context is so important in such environments.
Second, most evidence today is digital, and the systems that create that digital evidence are getting more complicated. In a Web or Enterprise 2.0 world, “business records” might be ephemeral views of data that are created on the fly from multiple data sources that a company has no control over. How many commercial applications today rely on data from third party web services like Google Maps? Records don’t look or act like paper documents anymore, and that can make understanding them and explaining them to judges, juries, and other IT laypeople very difficult, time consuming, and expensive.
Third, even in situations where investigators are neutral and only trying to assemble facts, their tendency is to suffer from confirmation bias. Confirmation bias causes us to view evidence in a way that confirms our own positions, and ignore evidence that doesn’t support those positions. This is explicitly what each side attempts to do in intentionally oppositional system like the courts, but outside of those systems, confirmation bias is just a barrier to discovering the truth.
Fourth, the sheer volume of data generated by large companies can make it incredibly difficult to find relevant information. There are many products out there to help with this task, but it is still difficult and expensive when terabytes of data are in play. Under the pressure of time and budget, important information and context may be missed.
Fifth, even if you can find and produce all this complex stuff, there is no guarantee that it is good evidence. How was it stored? Who had access to it? Do you have an audit trail? Could some one have changed it? Is it trustworthy?
So, does any of this help a company that is faced with a supposed smoking gun?
No, not really. Especially when the case is being tried in the court of public opinion.
Toyota is discovering this today with the release of an internal presentation that discusses the company’s relationship with Washington and its increasingly “activist administration and Congress.” This and other documents have been used to create a caricature of a company that cares more about profits than safety. Do these documents “prove” anything? I don’t know. Are they damaging? Yes.
So, what is the lesson?
Companies need to think clearly about how their actions – and the records of those actions – could be interpreted when viewed in the worst possible light. Sometimes this is impossible to predict and prevent. And, we can’t create a culture where people are afraid to speak the truth. However, companies should seek to create a culture where employees are aware that even the most innocent comment made in the wrong context can be damaging.
I see this all the time. Non-engineers having days and days of casual discussion in email, instant messages, and internal blogs about flaws in their company’s products. Executives weighing in on the quality of another business unit’s work. A callous joke about a customer’s misfortune. When an email message from someone at your company reads, “we shouldn’t be selling that buggy cr*p to our customers,” will anyone care that it came from someone who had no expertise or direct knowledge about the product? Will reporters care? Will jurors?
This issue is directly relevant to information governance.
Let’s say you start a project to get rid of all the old and unnecessary information hanging around your organization. Inevitably, during project planning, someone (let’s call him Ralph) exclaims, “Oh this is great, now we don’t have to worry about all the bad stuff that might be out there in our backup tapes and archives.” Maybe Ralph even puts this in an email message. It’s an innocent comment – Ralph really believes this is a good thing. But, we don’t do information governance to get rid of damaging content. We do it so we can be better organizations, reduce our costs, and comply with the law. If we have “bad stuff,” then getting rid of it under the guise of information governance can kill your company, as Arthur Andersen found out about ten years ago.
OK, so you get it. You have reams of documents outlining the business case and the legal underpinnings of your program. It’s not a bad stuff cleanup program.
Now fast forward two years.
Your company is embroiled in litigation around product manufacturing defects. The other side claims you are hiding evidence. That executives knew for years about the problems and did nothing. You tell the jury that two years ago you invested millions in an information governance program explicitly to ensure that you were keeping everything needed for business and legal purposes. You did the right thing.
Then, the lawyer holds up Ralph’s email.
It’s all a smokescreen, folks, the lawyer says. Don’t be fooled by this so-called information governance program. This email shows the true intent of the program, which was to cover their tracks, to destroy the evidence that would prove our case.
Do you win or do you lose? I don’t know, but I wouldn’t take that bet.
The released Toyota documents also make clear that the company understood – in the face of Detroit’s problems – that the market now had “greater expectations” for the company, and expected it “to be a leader.” It was a prescient observation that highlights how even the most sparkling reputation can be dulled in an astonishingly short time. Be a leader, and get on top of information governance. After all, when third parties come knocking, our information will speak for itself – for better or for worse.