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Hot Spots: The Federal Rules of Civil Procedure: Help for storage teams

Ezine

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The new FRCP rules are about more than how a company deals with legal issues; they're an opportunity to improve enterprise information management.


New e-discovery regulations will make storage managers' jobs even tougher, but they may also be a blessing in disguise. Last December, the Federal Rules of Civil Procedure (FRCP), which govern civil law processes in the U.S., were amended for the 10th time. One of the amendments, Rule 26(a)(1)(B), states that an organization must be able to identify, by category and location, electronically stored information it may use to "support or defend claims." The amendment also mandates that this capability should exist before a discovery request for specific information is made.

I'm not sure organizations headquartered in the U.S. are ready for this, and we're eight months removed from the FRCP changes going into effect. I'm willing to bet that many CIOs and corporate counsels don't know what information they store, where it is and how much it would cost to produce it as evidence. The substantiation for this particular requirement, as well as Rule 26(f), which requires opposing parties to immediately meet and discuss issues related to electronically stored information, was the number of pretrial hearings on arguments surrounding the burdens--especially the costs--associated with producing digital evidence.

Storage costs can be high during an electronic discovery. Tape

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restoration costs, including legal supervision and basic review, have been the center of controversy as judges were forced to determine who paid for data restoration and review. During one case, Quinby v. WestLB AG, 2005 U.S. Dist. LEXIS 35583 (S.D.N.Y. Dec. 15, 2005), it cost $3 million to restore more than 3,700 backup tapes. In Zubulake v. UBS Warburg LLC, 2003 U.S. Dist. LEXIS 12643 (S.D.N.Y. July 24, 2003), the total bill to restore, review and produce 77 backup tapes was $273,649.

The bottom line is that the FRCP will impact information management in your shop, if it hasn't already done so. But you can use the rules to your benefit. As a storage guru, you store more than just evidence. You store business assets. These new legal process rules should serve as a catalyst to improve your overall understanding of information.

Think like a lawyer (for a minute)
For the most part, your storage team is the only department that has any indication of what corporate information exists and where it is. You know, in theory at least, how many copies of application data are created for data protection purposes. For those things you may not know--such as the content or context of all the files, messages and database records in storage--the FRCP may be able to help. The content of files, email messages and databases provide the most insight during a legal proceeding, regulatory investigation or internal audit. Knowing who created the files, keywords, text patterns and other attributes (context) can help you manage information more effectively and take advantage of things like tiered storage or hardware encryption if the data is confidential.

This was first published in August 2007

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