After my last few posts on FRCP, I went looking for a simple, clear and concise description of what FRCP means to the average IT organization.
Sad to say, I ended up far more confused than I started. Lots of thoughtful opinions, but no net-net.
Enter Andy Cohen, a fellow EMC-er (and a lawyer!) who is driving EMC's growing compliance practice.
I'll turn the mike over to him.
A number of executives, sales people and others have recently been asked by customers about "a new law that requires companies to keep all their emails forever".
These customers are referring to the new Federal Rules of Civil Procedure for eDiscovery, which went into effect on Dec 1, 2006. These rules govern when and how information must be collected, preserved and produced in connection with legal discoveries in every case pending in any US Federal Court.
To summarize, the rules do not expressly require companies to keep all content forever, but they do require the following:
- ESI or "electronically stored information" is now definitively subject to legal discovery (lawyers can no longer agree to completely ignore electronic content merely because they are more comfortable with paper documents);
- Transparency - at the beginning of every case, the lawyers now must "meet and confer", including to exchange information about the "sources" of information from which their client companies are, and are not, producing information.
Essentially, this is requiring companies to throw open the doors of their IT departments to the plaintiffs' lawyers, who will inevitably seek to discover company information from many "sources", and who may attack the way companies manage, preserve and destroy their information. (Additionally, information now has to be produced in a "reasonably usable" format, likely leading to more productions in native file formats.)
- Preservation - the concept of "litigation hold" or preservation of relevant information is not new, but it is now officially required in every federal case. This means that every time a company is placed on notice of a new case, the company must identify the information that is potentially relevant to that case, and preserve it for subsequent production to the other side in the case.
For example, if a set of files that normally has a 1 year retention period is potentially relevant to the "Smith v. ABC Corp" case, those files must be retained by ABC Corp not just for 1 year, but for the life of the Smith case.
Most enterprise customers have dozens or hundreds of cases at any given time, and without good tools to find and preserve what's relevant, they may end up "saving everything" for fear of destroying the wrong things. This will lead some to retain more information for longer periods. For many, saving everything will be too painful, and this creates a strong incentive to implement proactive processes and policy management of information. Either way, EMC is uniquely positioned to help our customers.
Since every company that does business in the US is subject to litigation risk, the impact of these new rules is wide spread and significant. Moreover, unlike Y2K and other one-time events, Dec 1 marked the beginning of new requirements whose impact will increase steadily for years to come. eDiscovery is a significant (multi-billion dollar) addressable market opportunity for EMC because eDiscovery makes the failure to policy manage information extremely costly and risky.
Additional information can be found on the Compliance Practice's eDiscovery landing page (www.emc.com/solutions/compliance/ediscovery), and please contact me if you want information on how my team and I can help customers understand and manage their challenges in this regard
Thanks, Andy. Now I can explain it in plain English!