New e-discovery rules go into effect in December

Computerworld - New rules for electronic discovery of documents in civil cases go into effect in December -- and they could cost users millions or even billions of dollars if they fail to comply.

Last September, the Judicial Conference of the U.S. Supreme Court's Committee on Rules of Practice and Procedure recommended changes that force companies involved in a civil lawsuit to sit down and hammer out what records are fair game for electronic discovery.

In general, the resulting 300-plus page document describing the new e-discovery criteria says that companies involved in civil litigation must meet within the first 30 days of a case's filing to discuss how to handle electronic data. The discussion must encompass retention practices, the types of records required and their electronic format, as well as what is considered "accessible" data, said John Bace, an analyst at Gartner Inc. in Stamford, Conn.
Failure to comply with the new rules could be costly.

Morgan Stanley was fined $1.5 billion -- half of which was punitive -- in May 2005 when a judge ruled that it had failed to preserve information. Hearings for an appeal in that matter are scheduled for June 28.

It was partly for legal discovery reasons that EMC National Life Co., in Des Moines started using an e-mail archiving service from Fortiva Inc. "The ability to do legal discovery with their searching capabilities sold us on their product," said Marc Comstock, assistant vice president and technical services manager at EMC National Life. "It's incredibly fast."

The 110-employee life insurance company has been using the Fortiva service only since February and already has 350,000 stored pieces of e-mail. Even so, a full text search takes less than 10 seconds, he said.

Comstock said he was not aware of the new rules, and his organization -- which provides services to independent agents -- could end up running into problems because the agents use a variety of modes of communication -- including Blackberries, instant messaging and Web-based e-mail -- whose content doesn't get captured by a corporate system.

"Eventually, we'll have to find a way to [capture] text messages," he said.

Comstock said he was also impressed by how easily the Fortiva system allowed users to retrieve archived e-mail. "It's incredibly fast," he said. "You hit 'retrieve' and it gives you an option to type [additional] data in and sends it to your in-box within five seconds. Every user has access to their own and can search their own e-mail."

New features in backup and archiving products may make it easier for users to retrieve their own data but could wind up opening corporations up to more legal liability, said Deidre Paknad, CEO of PSS Systems Inc. in Mountain View, Calif.