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FEDERAL RULES
Handling Electronically Stored Information Under the Revised FRCP
All companies must get a handle on their data before they can begin to get their ESI house in order by putting the appropriate processes and tools in place.
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Even after more than six months of extensive coverage given the amended Federal Rules of Civil Procedure (FRCP), which went into effect on December 1, 2006, many organizations still have not implemented a strategic plan to address their impact. The reasons for this delay are varied, but one thing everyone can agree on is that the revised rules have generated a significant amount of angst and confusion.
!!end Executive Summary!!
And while becoming paralyzed by the size of the task ahead is a natural reaction, even the largest organizations will find that taking a sensible, step-by-step approach will allow them to get a handle on their data -- which is the key to handling ESI under the revised rules.
Knee-jerk reaction
The response from most organizations to the revised FRCP has been predictable -- fear of:
- Enormous litigation costs
- Greatly increased complexity
- Not uncovering the proverbial smoking gun before the other side does
- Spoliation sanctions and adverse inference jury instructions
- Increased litigation exposure
No one wants to be "the next Morgan Stanley," a none-too-subtle reference to the seminal 2005 case (Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., 2005 WL 674885 (Fla. Cir. Ct. Mar. 23, 2005) in which Morgan Stanley was unable to produce certain e-mail in response to Coleman's discovery requests and the court's discovery orders. Morgan Stanley suffering the astounding trio of a $15 million spoliation sanction and a highly damaging adverse inference instruction and a $1.5 billion verdict for the plaintiff. (That the case has since been reversed on appeal does not seem to have diminished its impact. See Morgan Stanley & Co. v. Coleman (Parent) Holdings, Inc., 2007 WL 837221 (Fla.App. 4th Dist. March 21, 2007)).
Not surprisingly, a byproduct of the fear the rules have engendered is rapid growth amongst vendors who supply the technology 21st century litigators will use. According to Forrester Research, this market is expected to grow from a mere $1.4 billion in 2006 to almost $5 billion by 2011, which translates into an average annual growth rate of roughly 30 percent.
What is the reason for this torrid growth? Most organizations, and especially the largest ones with the largest information technology and litigation support budgets, believe incorporating and automating with technology is the easiest, most cost-effective way to organize, categorize, search, review, and produce data. The amended rules will be painful and costly for many organizations.
This article seeks to simplify the process of getting your ESI under control to address the revised rules by breaking things down into clearly defined steps. While every enterprise's needs and environments will be different, the general principles that follow should be applicable to just about any situation.
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Craig Carpenter, Vice President of Marketing and Business Development, oversees all aspects of marketing and business development at Recommind. He has extensive experience in the enterprise software, information security, and eDiscovery industries, and is a frequent speaker and panelist at industry events like the Wall Street Technology Association, ISSA, Interop, and RSA Conference. Craig is an adjunct faculty member at the University of San Francisco where he teaches graduate classes on high tech marketing, content management, and digital rights management (DRM). Prior to Recommind, he was Senior Director of Corporate Marketing & Global Channels at Mirapoint, a leading messaging and information security vendor. Craig received his MBA and JD from Santa Clara University and his BA in history and political science from UCLA.
Keyword Tags: E-Discovery, Law Technology
ADVISORAMA You're not getting older, you're getting better. Or vice versa.
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ARTICLE INFO
Web Edition: 2007 Week 30, Doc #19176Print Edition: 2007 Issue 4, Page 9
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