Getting Up To Speed On FRCP

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Savvy storage managers would be wise to get up to speed on new regulations on e-discovery and electronic data management.

New amendments to the Federal Rules of Civil Procedure (FRCP) now require organizations that operate within the U.S. to manage their electronic data so it can be produced in a timely and complete manner. FRCP governs court procedures for civil suits, and the December 2006 revisions address the disclosure and discovery of electronic information, including answers to interrogatories, production of documents and other information for inspection, sanctions and subpoenas.

Recent headlines highlight the perilous waters of e-discovery. In many cases, 80 percent of the information in litigation cases is electronic, according to Ralph Losey, an attorney with Akerman Senterfitt, “and in most of these situations, the smoking gun evidence is found in the e-mails or instant messages.”

An employee suit against UBS (Zubulake vs. UBS Warburg) that hinged on the defendant’s deletion of e-mails resulted in a verdict for the plaintiff and triggered a series of decisions that established a duty to preserve backup tapes and ensure that all potentially relevant information is identified and placed on hold. That decision, as well as others levying multi-million dollar fines against companies guilty of e-discovery abuses, have created an urgent need for organizations to be able to adequately perform e-discovery.

Most Not Ready for FRCP

Developing an organization-wide approach to understanding and organizing electronic data information (EDI) should be a goal for everyone, but many storage managers don’t have the technology in place to properly produce information such as corporate and personal e-mail records and attached files. Companies produce millions of e-mails annually, and a majority of IT managers surveyed by Osterman Research earlier this month have been required to produce e-mail as part of a legal action. However, almost one-third of the organizations surveyed admitted they could not produce an e-mail over a year old.

Only a small number of the organizations surveyed had a corporate retention policy in place, while a quarter of companies purged e-mails manually or automatically after 90 days or less. Users reported that two-thirds of what is saved to local hard drives are e-mail attachments, and that three-fourths of those surveyed check e-mails from home on a computer they own. The lack of policies for items such as personal e-mails, and the inability to locate each and every place where corporate or personal e-mail data could reside, can cause serious problems for companies that need to produce all relevant information during e-discovery or regulatory audits, Osterman Research said.

Findings like these underscore the conclusion that organizations are not prepared to meet the demands of the FRCP amendments, according to Michael Osterman, founder and principal of Osterman Research. FRCP regulations are in force today, but one in three organizations surveyed were not aware of FRCP, and 52 percent of IT managers surveyed did not have in place an e-discovery process prepared by legal counsel.

Industries affected by compliance regulations understand the need for long-term record retention, media recovery and discovery based on those regulations, such as Sarbanes-Oxley and HIPAA.

But now, with the FRCP changes and the possibility of anyone becoming a defendant in a civil lawsuit, the ability to respond quickly about electronic records that could be used in a procedure requires everyone to have a plan, according to Mike Koclanes, chief strategy officer and senior vice president of sales and marketing at Plasmon.

The first steps in the plan include becoming aware of the kinds of electronic data in the organization that might be needed in a litigation process, and getting the company to agree to policies for retention. Investigating the amount and cost of preserving, restoring, processing and reviewing relevant electronic data, and implementing well-defined SLAs, is essential.

“FRCP makes e-discovery relevant to everyone,” said Koclanes, “so commit early to a well-defined service level for the process.”

Searching for Solutions

“Ignorance of technology is no defense in satisfying e-discovery requirements,” said Osterman, but with the plethora of e-discovery solutions on the market today, finding the right solution may be an arduous task.

One place to begin to understand the technical aspects of e-discovery is to read “Best Practices for the Selection of Electronic Discovery Vendors,” published by The Sedona Conference ( This document, authored by users of EDI vendor services and the Sedona Conference RFP+ 35-member vendor panel, provides guidance to law firms, law department attorneys and litigation support professionals on finding an electronic discovery vendor that best fits the organization and the discovery project they wish to undertake. The document focuses on vendors that provide software solutions or services of processing data, consulting, data collection, data recovery and hosting. A list of best practices provides items to consider about a supplier, security and potential conflicts.

One of the most logical methods for storing electronic data such as e-mails and IMs is in an archiving system that can satisfy all e-discovery requirements and preserve information on a long-term basis in support of more strategic corporate objectives. Information captured from a variety of data sources can be indexed and placed automatically into an archive for long-term storage. Automated policies can be applied to extract the information without user intervention or extensive searching of non-indexed backup tapes. Archival systems can also alleviate data overload on e-mail servers by automatically transferring data from user mailboxes to the archive.

Archiving systems available today combine any combination of RAID disk, optical technologies and tape and can be implemented to meet a variety of customer requirements.

Koclanes said developing systems that span data identification, protection, policy and overall media requirements are an important part of satisfying the requirements of FRCP. “Using technologies specifically geared to archive and e-discovery requirements are key to a successful solution,” he said. Plasmon’s write-once-read-many Ultra Density Optical (UDO) archival storage is combined with applications that classify and identify data for a solution that supports longevity, authenticity and easy electronic discovery.

“Headlines are a big driver” for a growing awareness of e-discovery, according to Matt Smith, president of LiveOffice. Live Office’s Web-based system enables secure archival of e-mails, e-mail attachments and instant messages in a searchable repository that stores and produces data in response to discovery requests.

“Technology companies such as LiveOffice work with in-house teams, or handle compliance as an outsourced solution to allow companies to focus on their core business,” said Smith.

Bringing Everyone Together

“Working together is the door to success in meeting FRCP regulations, and technology is the key to introduction,” said Smith. “Often groups meet for the first time when a technology program is introduced. Individuals in compliance are the business owners and drive the program, working on the requirements with IT who research solutions and fulfill requests.”

Koclanes said Plasmon is seeing more companies who realize that infrastructures and IT service level agreements are not geared toward long-term discovery and archiving. “Companies are discovering that they have difficulty in finding things, and don’t have a good index to search without restore and prove what was on the backup is different than any other backup,” he said. “We now see financial, business, legal and IT together examining archival solutions that offer protection of long-term data storage, but also give random access.”

Smith agrees that legal is an integral player on the team. “Their requirements for an archiving solution that can store and index e-mails, attachments and instant messages in a single searchable repository are what is necessary to meet litigation requirements,” he said.

Financial services IT managers have been leaders in working with legal departments to archive e-mails, develop on-demand systems and update their archival practices, but now LiveOffice is seeing interest in e-discovery in markets as diverse as pet supply providers and equipment manufacturers. Regardless of industry, collaborating to define and meet service level agreements, implement processes and provide management tools ensure that companies will be ready to “get” FRCP.

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