We started with a premise: A disaster has occurred. What now?
We segued into a limited examination: Were we properly prepared? Why or why not?
Now, comes the all-too-familiar Watergate-esque finale: What did we know; and when did we know it?
According to this comprehensive report, officials were warned that there was a 10% risk within a 50-year span of a tsunami swamping the protective barriers of the Fukushima Dai-ichi nuclear power plant – and disregarded it. What result?
- Human toll: incalculable
- Environmental damage due to radiation contamination: incalculable
- Damage to 'hard assets' (plant, equipment, etc): incalculable
- Near-term cost to replace loss of % of daily supply of electricity to Japanese citizens: incalculable
- Evacuation and relocation costs: incalculable
- Current financial losses to shareholders of TEPCO: $30 billion dollars of market value
- Errors and Omissions losses to insurance carriers: incalculable
I could go on, but you get the idea. Now for the bad news. That's not the worst of it. How about:
- Liability of executives, government officials, etc. for negligence. I'm referring to all liabilities (i.e., not just financial issues), since some parties may enjoy sovereign immunity; but that doesn't address their political liabilities.
- Liability of executives, government officials, etc. for criminal negligence. Think that it isn't a distinct possibility?
- Liability of corporate executives to their shareholders for massive losses due to lack of reasonable prudence.
You know what? I have to stop now. This feels ghoulish.
The point I'm making is, certainly, this is about as bad as a disaster gets, but we can all learn from it because there's only one item we need to change – scale. Plus, the most important thing relevant to us in the real-life case study we're now seeing is what happens when we're wrong.
Worried eDiscovery clients always ask me how they're ever going to do everything right. I tell them, there is no such thing. It's impossible to anticipate everything, but as a rule of thumb, the fallback position is the basic negligence standard:
Knew, or should have known.
If they acted in good faith based on what they knew or should have reasonably anticipated at a given point in time – and present a defensible position as to why they acted – they'll likely preserve safe harbor. Naturally, one can never completely account for the odd rogue judge. The day all judges rule alike is the day I give a specific answer. In the meantime, you do the best you can.
The key is in making sure you have the appropriate harbor pilot.