New rules, new game for compliance and ediscovery


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In light of the revised FRCP compliance rules, you may need to change your document-retention policies or face the consequences in court.

The updated Federal Rules of Civil Procedure (FRCP) make electronically stored information (ESI) as important in litigation matters as paper-based documents. The rules now explicitly designate ESI as discoverable in a federal legal proceeding. "With 40% of corporate information spending its entire life in electronic form, ESI has become very important in litigation," says Tom Russo, a member of the Corporate Counsel Technology Institute at Widener University School of Law, Wil-mington, DE, as well as a faculty member at the National Judicial College in Reno, NV.

In addition, the updated rules state that data should be in the form in which it was created with its meta data. "We're now teaching lawyers all about meta data," says Fred Lederer, chancellor professor of law and director of the Center for Legal and Court Technology at William & Mary School of Law in Williamsburg, VA.

With paper documents, usually only the final version was filed and saved. Not so with ESI. "You might have 15 copies of the same document stored. Casual conversation [in email or voice mail] is now stored electronically and is considered a corporate document for litigation purposes," says Russo. "Suddenly, all this data is sitting there. The risk of discovery during litigation is great." Due to that litigation risk, adds

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Russo, a retention system that gets rid of data as soon as there's no business or regulatory reason to keep it is one of the most important things you can have.

"Our retention strategy can be summed up like this: Preserve data for the appropriate amount of time," says Robert Gerbrandt, senior project manager/legal at TD Bank Financial Group, Toronto. "That means keeping the right information in the right place for the right amount of time and not a moment longer." The bank has set up a cross-functional working group composed of members from the compliance, HR, legal, audit and business units to define its retention policies.

This was first published in September 2007

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