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One year after FRCP, struggles continue with e-discovery

It's easy for IT managers to feel like they're just foot soldiers in the e-discovery process. But experts warn of trouble ahead for those not aware of their role under the FRCP.

A year ago, changes to the rules which federal courts use to prosecute civil cases went into effect. Those changes have since resulted in a wave of marketing hype from technology vendors, but only dim awareness among data managers about how the amendments to the Federal Rules of Civil Procedures (FRCP) affect them.

In a recent survey of 500 IT managers and a dozen in-house legal managers, conducted by backup and archiving vendor CommVault Systems Inc., half the respondents said they had been tasked with at least one e-discovery request in the last year. But only 20% were aware of the changes to the FRCP, and 82% responded that their organization had not yet started to address the challenges introduced by the amendments to the rules.

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Furthermore, fewer than half of the legal managers contacted for the survey said they had been in discussions with IT managers about legal holds, retention policies or e-discovery.

"Setting retention policies has been the struggle for most organizations," said Paul D'Arcy, vice president of marketing for email managed service provider MessageOne Inc. "No one wants to put a stake in the ground."

David Dulek, storage administration lead for Fastenal Company Purchasing, a subsidiary of industrial and construction supplies maker Fastenal Co., said his company is dealing with the rule changes slowly. "It's on the radar," he said of the FRCP. But, he added, inside counsel and officers have a better understanding of the requirements than he does. "As far as I know, they're still trying to come up with policies for what we need to keep, how long and who's responsible," he said.

Once the policies have been defined, Dulek said, he expects his department to begin working with business units on putting a plan in place -- but not before mid-2008. "I'm hoping we'll start evaluating vendors [for new archiving and data management products] by the end of next year, but realistically, it may be 2009," he said.

"As e-discovery has continued to grow as an issue, more and more magistrate judges have shown that they will come down hard on companies over a failure to comply with hold processes for e-discovery," said Jon Neiditz, practice leader for information management at Locke, Lord, Bissell & Liddell LLP. Attorneys can be held in contempt of court and face other sanctions as a result of a failure to hold relevant data when there is a lawsuit pending or reasonably expected. Companies that can't show they have an enforced data management policy in place may also stand to lose judgments and incur fines.

If legal counsel and compliance officers are supposed to keep track of policies, IT managers in the trenches may think they don't have to worry about the FRCP. But the year-old changes to the rules make it IT's issue as well, whether or not data managers know it.

IT's new role in litigation

Even if a case never goes to trial, under the new rules all legal proceedings in civil cases begin with a preliminary "meet and confer session" to decide what electronically stored information should be produced for trial. At that meeting, each party must demonstrate that it has a systematic and enforced data retention policy. At the least, the IT manager's duty is to inform representatives to that meeting about the company's data storage infrastructure and data management processes. More likely, the IT managers will be brought to the meeting to answer for the company's data management practices, regardless of how big of a role electronic information plays in the case.

If you're not sure who the person is in your organization responsible for records management, that person may be you.
Howard Nirken
PartnerDubois Bryant & Campbell LLP
Under the new rules, the next step is to determine what data is "reasonably accessible," and must be produced. What constitutes not reasonably accessible is open to debate, but is often refined as electronics records that must be converted or recovered to be usable, such as files stored on tape. However, defendants may be ordered to recover relevant data not considered reasonably accessible.

Many organizations react by keeping everything to try and short-circuit the arduous planning process, but this can backfire, particularly when the legal fees to search through millions of potentially relevant documents begin to mount.

"If you can go back five years," said Howard Nirken, partner at Dubois Bryant and Campbell LLP, "you will have to go back five years, no matter how difficult it is to restore or work with that data."

Ultimately, Nirken warned, users should keep in mind that what they don't know about their company's data and organizational structure can hurt them. "If you're not sure who the person is in your organization responsible for records management, that person may be you," he said.

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