The FRCP, E-Discovery & Your Business

While the Federal Rules of Civil Procedure (FRCP) may seem complicated, there is one point it makes with absolute clarity: businesses should have an enforced e-discovery and data retention policy. While this intimidating piece of literature spells out the expansive rules governing discovery and data retention for all organizations, it also gives allowances for information lost due to routine data retention policies. These exceptions, however, apply exclusively to those who already have a documented data retention and e-discovery software system.

The FRCP predates the advent of computers in business. It wasn’t until 2006 that discovery requests automatically included all applicable electronic files. As such, electronic data is now subject to the FRCP.

FRCP chapter 5, specifically rules 26 through 37, cover the bulk of the discovery law. Rule 26a eliminates previous terminology confusion by adding “electronically stored information” or ESI as its own category. This prevents arguments over whether voice over IP, instant messages, PDAs and databases are included in discovery requests. Thus, ESI is governed by the same FRCP rules as paper documents.

What’s even more confusing is that various laws intersect to determine which ESI requires archiving and which can be trashed. This means that laws such as HIPPA, the NASD or the SEC dictate how long specific information, even information sent via email or IM, must be stored. In addition to retaining ESI according to federal regulations, companies must be able to effectively and efficiently search these archives and procure requested documents within the specified timeframe.

Having an intuitive and easy to use e-discovery and data retention discovery program is important for storing, sorting, indexing, and retrieving files according to the retention laws that apply to your company. Additionally, there is the problem of determining how to archive data that is not strictly regulated. It’s improbable, though not impossible, that email invitations to work lunches and such will be needed for litigious purposes. Do you archive them anyway? If so, for how long? And should you happen to delete a necessary email days before a discovery request, will that look suspicious and count against you in court?

If your company has a fine-tuned system in place, your chances of being held accountable for missing information is lowered considerably. A “safe harbor” provision was added to the FRCP to prevent companies attempting to be compliant from getting bulldozed in a court case. Simply put, this safe harbor provision prevents the court from penalizing companies for being unable to produce requested information that was “lost as a result of routine, good faith operation of an electronic information system”.

This does not give companies carte blanche freedom to routinely delete regulated ESI, but does provide companies freedom to routinely delete ESI of low importance without fear of repercussions. Similarly, provisions exist to prevent companies from experiencing “undue burden” when attempting to comply with an e-discovery request. Without an existing e-discovery program in place, determining what constitutes an “undue burden” for your company can take longer than the allotted period for the discovery request.

Sanctions taken by the court against companies who cannot or will not comply with a discovery request can be quite severe and range from covering the opponent’s legal fees to allowing the court to find judgment by default. Having a thoughtfully planned archival and e-discovery system in place is the best way to prevent legal sanctions resulting from a failure to comply with discovery requests.

Sherpa Software offers a broad range of email archival software, e-discovery software, and compliance software that integrates seamlessly with Lotus Notes and Microsoft Exchange to keep you prepared to tackle any litigation that may come your way.