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E-discovery Rules Still Causing IT Headaches

Brian Fonseca | Jan. 7, 2008
Many say the new archiving guidelines fail to account for evolving technologies.

FRAMINGHAM 7 JANUARY 2008 - Many IT shops have spent months working to refit corporate systems so they comply with year-old changes to the Federal Rules of Civil Procedure, even as some executives say the revisions aren't clearly defined.

However, some IT executives who complained about the rules did acknowledge that the FRCP modifications have forced them to make positive changes to corporate data-retention policies.

The revisions, which took effect on Dec. 1, 2006, require that opposing sides in a federal lawsuit meet within 99 days of its filing to determine what electronic data must be produced and in what format. Failure to comply could lead to fines or a prison sentence.

The e-discovery rules have been created and are enforced by the U.S. Supreme Court and are often followed in state courts as well.

IT staffers at Webcor Builders Inc. have been struggling to understand the ambiguous rules while simultaneously working to determine where all relevant data resides and how it can be accessed quickly in case of litigation.

Gregg Davis, CIO at the San Mateo, Calif.-based construction firm, contended that the rules fail to take into account evolving storage technologies.

The new rules require that electronic data be in its native format, he said. This is easy to achieve when it comes to e-mail, which was the provision's main target. But it gets very murky when it comes to propriety databases and homegrown applications.

There are still a lot of questions around what is digital storage and e-discovery, Davis added. The [revised] rules have changed the game, and we are [being forced to] think and rethink where things are stored.

For example, he noted that Webcor still isn't sure whether images and documents on copy machine hard drives and print servers fall under the revised guidelines.

The latest revisions prompted Webcor to re-evaluate its overall data- retention policies and schedule quarterly meetings of executives from its IT and legal operations to discuss FRCP issues, Davis said. The company also tweaked its Symantec Enterprise Vault archiving tool to make sure data is available when it's needed.

Davis recounted some questionable demands from opposing attorneys in some recent litigation in state court. One of them asked that Webcor buy his client software that could help it read the contractor's Oracle database. Fulfilling such a request could prove very costly, said Davis, adding, This is why [FRCP] is a new slippery slope.

Laura Dubois, an analyst at IDC, said the FRCP changes are forcing companies to significantly increase spending on backup applications. The research firm predicts that e-mail archiving application sales will grow from $631 million in 2007 to $1.37 billion in 2011, she noted. The updated FRCP rules have already placed a heavy burden on IT staffers, said Howard Nirken, a partner at Austin law firm DuBois, Bryant & Campbell LLP.

[FRCP] has made their lives incredibly complicated, Nirken said. IT is now responsible for immediately locating electronic files that can exist just about anywhere in networks, in people's personal computers [or] on any electronic media you can imagine.

Nirken, whose firm uses MessageOne Inc.'s hosted e-discovery system, said IT managers must make sure that such technology can freeze documents in e-mail in-boxes and instantly search for and locate needed data.

Silver Lining

The rush to comply with the updated rules has provided some businesses with unexpected benefits by forcing action, IT managers say.

Bill Shaw, MIS director of The Village of Niles, Ill., said the revised rules led city officials to decree that all e-mails to and from city offices are official documents and subject to legal review.

That policy change quickly eased the city's e-mail storage and management burden by reducing the number of nonbusiness e-mails that pass through its systems, Shaw said. It's had a reduction in our e-mail and an increase in productivity, he noted.

The Village of Niles uses a messaging appliance called Plug n Comply from Jatheon Technologies Inc., and Shaw checks it monthly to identify non-work-related messages and other inappropriate e-mail.

The city decided to deploy Toronto-based Jatheon's appliance in early 2007 after state officials began requiring that all e-mail communication be available when needed as evidence in court cases.

The city, which employs some 250 full-time workers and about 5,500 part-timers, processes e-mail through a single Microsoft Exchange server, Shaw said.

The Brink's Co., a Richmond, Va.-based firm whose holdings include Brink's Inc. and Brink's Home Security, hopes the revised FRCP guidelines clarify which data needs to be retained for long periods and which data can be deleted, said Suzanne Barasch, manager of corporate information systems and global messaging.

The company currently purchases 20 800GB backup tapes monthly to save all of its corporate data, she said.

I'm not able to overwrite any of my tapes, and I haven't been able to do that for three years. [Our lawyers] don't want to overwrite any data, Barasch said. I think there comes a point where keeping everything is silly. There are files that haven't been touched in years. Brink's will begin installing IBM's DB2 CommonStore for Lotus Domino and eMail Search for CommonStore this month to smooth what can be a crippling archiving process, Barasch said. If someone were to come to me and say, Provide this [electronic evidence], it would cause me a lot of heartache now because of how things have been stored, she noted.

Rick Chin, senior vice president of IT at Pinnacle Financial Corp. in Orlando, said his company got a head start on changing its e-discovery processes after learning about looming FRCP changes at an industry conference months before the rules took effect.

The revised rules prompted Pinnacle to buy Mimosa Systems Inc.'s NearPoint e-discovery and mail archiving software in 2006 for use with its two Microsoft Exchange servers.

Chin considers himself fortunate to have learned about the revised rules long before they needed to be implemented.

A lot of stuff that happened last Dec. 1 caught a lot of people off guard and [led] to scrambling and [confusion over] what to do, he said. From [listening to] my peers, it's been a drain on them to add enough storage to do e-mail archiving or modify their processes.

 

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