FAQ: Changes to the Federal Rules of Civil Procedure Affect Storage Plans

Computerworld - If youre an IT professional whos also interested in legal affairs, there has never been a better time to blend the two worlds. With the amendments in December 2006 to the Federal Rules of Civil Procedure (FRCP), IT has become inextricable from the discovery process of corporate litigation.

IT has to be a part of most of these matters because, regardless of whether its sexual harassment or slip-and-fall, it all involves some level of electronic information, says Brian Babineau, an analyst at Enterprise Strategy Group Inc.

In fact, in an ESG survey in August, 44% of 568 IT and records management professionals polled said they had a dedicated or specialized IT staff to help with the discovery of electronically stored information (ESI), whereas only 4% said they had specialized e-discovery attorneys. IT has to dedicate people to the lawyers, Babineau says.

And while the FRCP changes were intended to make e-discovery easier and cheaper to do, they were based on the presumption that IT organizations were managing things better than they actually were, says Jim Minihan, president of IMerge Consulting in Orlean, Va. So now IT has to do all this stuff they never thought of before, including records management and closer supervision of data systems and how things are being stored in 100% of the cases, he says. Before, theyd worry about it when they were sued, but because theres now a defined process, the penalty of not following procedure can become horrific.

Weve compiled an FAQ to help you understand the changes to the FRCP.

Why should the FRCP concern me as an IT professional?

The FRCP directives govern federal civil lawsuits. Before Dec. 1, 2006, the rules didnt formally address ESI or companies responsibilities for preserving and producing this data. But now, the rules say, once and for all, that electronically stored information is now discoverable, just like paper documents, says John Thomure, an attorney at Michael Best & Friedrich LLP in Milwaukee. The intent is to provide clearer standards to help resolve or reduce disputes over data preservation, according to Robert Sikellis, associate general counsel at Vance International Inc., a Centreville, Va.-based consulting firm that offers digital investigation and litigation-support services.

What this means for IT, Sikellis says, is increased pressure to proactively manage data in order to avoid sanctions or unfavorable rulings that would result from failing to produce ESI thats relevant to a case. Legal and IT professionals need to come together to understand the new rules and their impact on IT planning and management, he says.