Published: 12 Aug 2007
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 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.
More importantly, this information contains critical business content that may provide unique insight into an organization's operations and employee behavior. For example, consider the amount of collaboration, including activities such as hiring employees and finalizing sales contracts, that occurs over email. These messages may be considered records of the business, and could be requested as part of a legal matter or internal investigation.
When a discovery request arrives, attorneys immediately go into a frenzy to provide date ranges, keywords, employee names and other criteria to be used in finding this information. This is all well and good if you have the appropriate technology to handle such a request. If you want to search for the relevant information, the data must be indexed to provide insight into its actual content and context. With the indexing done, you can search for the email or invoice your company counsel is looking for. And the faster lawyers get this information, the less likely it is they'll hover over your shoulder, impatiently drumming their fingers while they wait for the evidence to be gathered.
The funny thing is that knowing the content and context of information can actually help organizations in nonelectronic discovery situations as well. Other departments can leverage information as business assets. For example, engineers who can search customer service records can gather the most common issues with a specific product so that future designs address the problems.
Whether it's getting an email for an attorney or helping a product manager to identify buying trends within a specific geographic region, the challenge is the same: retrieving a small amount of information from a large data set.
Index, classify and search
One of the ways organizations can commence information identification and understanding is by indexing and classifying data with enterprise search apps. These products may be standalone applications or they may be embedded within information management products that allow large data sets to be grouped, organized and queried.
By getting complete, accurate results from enterprise search and classification tools in a timely manner, attorneys can spend more time reviewing evidence as opposed to looking for it. In addition, marketing can focus on analyzing the information instead of waiting for it to be found and loaded into a data warehouse.
One of the reasons for the rapid adoption of email, file-system and database archiving applications is the sheer number of business records companies must cope with. Organizations are also using content management systems to manage files and emails as records by defining a workflow that ensures the content is kept for the appropriate timeframe. Archiving and content management applications also index information before it's stored within a repository--most use embedded search technology. By embedding enterprise search and indexing technology with archiving and content management, vendors allow users to query repositories so they can quickly locate a subset of data.
Unlike information archiving and content management systems, there are several applications and information management software solutions that don't have embedded search and indexing technology. Fortunately, you have the option of making information more accessible by deploying intelligent storage systems that embed search and indexing functionality. As data is sent to the storage device from any application, the attributes of the content are indexed, allowing authorized users to locate information retained within a specific device. These intelligent systems leverage enterprise search technology to facilitate information access regardless of the application that stores it.
As you seek to mitigate electronic discovery costs by deploying products with enterprise search features, you should also determine where some of these applications can be used to support other business departments challenged with understanding where information is and how it can be mined.
Electronic discovery provides initiative for search efforts
Many IT departments have deployed enterprise search within business applications such as electronic commerce and custom portal software. Yet most corporate information--information that may be a treasure trove of electronic evidence--sits idly within storage systems. As a result of the arguments surrounding tape restoration costs, storage-related electronic discovery expenses and other issues surrounding digital data evidence production, the FRCP were amended and put into effect December 2006.
The FRCP will keep electronic discovery processes at the forefront of the minds and budgets of general counsels for the foreseeable future. Some of the rules are directed at understanding corporate information quickly; an unenviable task for many IT departments, especially storage groups that already have plenty to deal with. If attorneys need this information, IT and storage folks can help with enterprise search solutions or products that embed this capability. The good news is that attorneys typically have budgets to reduce litigious risk, and enterprise search features are extensible to marketing, engineering and other departments.