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New rules, new game for compliance and ediscovery

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The revised Federal Rules of Civil Procedure also applies to existing mandates such as Sarbanes-Oxley, HIPAA and various Securities and Exchange Commission (SEC) regulations. "The new rules [FRCP] are concerned with the preservation of evidence [and] ... about the access to data in the event of litigation," says George Paul, partner and chair of the ediscovery and data management group at Lewis & Roca LLP, Phoenix. "It is fair to say that the rules have raised awareness tenfold, 1,000%, among litigators," he adds.

Charlotte Bahin, partner, corporate department and financial services group, Lord Bissell & Brook LLP in Washington, DC, specializes in the banking sector and banking regulations. "Banks have a long record of good, robust records management. They have been storing and reporting data for check clearing laws, HMDA [Home Mortgage Disclosure Act], CRA [Community Reinvestment Act] and more," says Bahin. "The new federal rules are really an overlay of ediscovery rules. It might cause some people to rethink policies. It certainly has sparked discussion between IT, legal, compliance and audit, but banks are so regulated to begin with it doesn't have much impact."

Tom Gesell, IT director, TruWest Credit Union in Tempe, AZ, agrees: "The HMDA data storage requirements are minimal; same with CRA. We capture loan application data at application origination. It really is a very small amount of data," says Gesell. "Because we also

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sell insurance and investments, we do have to save email, which has big storage requirements. Both the SEC and Sarbanes[-Oxley] require us to keep records of correspondence with these clients. The federal rules don't change things much for us."

Basically, the revised FRCP have forced companies to figure out how to keep what they're supposed to keep and throw out what they no longer need. In addition, in litigation, companies need to be able to:

  • Identify potentially relevant material
  • Preserve that data and keep it from being deleted
  • Produce that data for attorney review and production to other parties
  • Release that data once the litigation is over; allow documents to be returned to their default document-retention status

This was first published in September 2007

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