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E-discovery Rules Still Causing IT Headaches

Many say the new archiving guidelines fail to account for evolving technologies.

By Brian Fonseca
January 7, 2008 12:00 PM ET

Computerworld - 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 arent 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 provisions 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 isnt 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 its 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 contractors 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.



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