The new FRCP: a progress report

The new Federal Rules of Civil Procedure (FRCP) have been in effect for about 10 months, so it seems a good time to take a look at how organizations are tackling yet another big information management mandate. We talked with leading e-discovery expert and Forrester (forrester.com) principal analyst Barry Murphy about the scope of the new rules.

Hugh McKellar: Just how big is the challenge organizations now face?

Barry Murphy: In a nutshell, the rules make every single piece of content—every e-mail, every IM, everything on every repository and every hard drive—in a organization a ‘business record.’ It means that you have to create policies about how long you’re going to hold on to information and enforce those via technology. Organizations must demonstrate ‘reasonable efforts.’

The rules basically say that there must be a policy that covers every single piece of content. It may be a very gray-area policy on those things that have traditionally been thought of as records. But now everything is a business record, and they all must be categorized and assigned some kind of retention policy, even if it’s 30 days.

HM: Obviously companies aren’t expected to keep everything forever, right?

BM: The rules actually allow you to systematically destroy data in keeping with those policies as long as you can execute a litigation hold, which is again another sort of up-and-coming technology play from some of these vendors—helping you create litigation hold policies and procedures. Being able to stop the systematic destruction of that data is extremely important once you’re on notice that there is a legal hold. It’s a lot more than just sending an e-mail to someone saying, ‘By the way, you’re on legal hold; stop deleting anything.’ You have to really be able to enforce that.

HM: How has the vendor community responded?

BM: I see three major categories of approaches to addressing these issues. There are business process outsourcing companies that concentrate on a full
e-discovery solution. Another set, primarily search and archiving vendors, focus on the collection aspects of e-discovery because collection has been such a painful task for IT people. It’s not easy to actually go out and find everything related to a discovery request in an efficient manner.

The third group targets making the very expensive legal resource as productive as possible. This software is designed as a silver bullet of sorts for content analytics—conceptually searching similar approaches that help to make the cases go that much faster in terms of review. And there’s a dual market—both the law firm and the corporate buyer interested in the review aspect because they are the ones using the tools.

HM: Looking forward, where do you think the primary responsibility for e-discovery will fall?

BM: You’re going to see a real effort on the part of records managers to make e-discovery a less reactive process. By acknowledging the pain that they’re feeling now, a lot of these organizations will be able to go ahead and make the investment in broader information management technologies. Records management is one area where you can ensure you’re getting policy out there to everyone and clamp down the policy to the actual content. It’s going to have to be federated; it’s not going to be repository-specific. We’re not going to see an environment where all organizations move to a standard, one-time repository. It’s going to require being able to federate policy into your archives or other file systems and repositories that may exist throughout the organization.

HM: What advice do you have for companies?

BM: The time to start is now. It’s more than just the perspective of legal or IT. This truly is one of those areas that requires a formalized cross-functional team. In many organizations, it’s the records team—they’ve done this before—really taking ownership of this and making decisions for legal that include IT. That makes the process more repeatable. Don’t think that you are going to just suddenly get the cure for discovery. It’s going to take some time, and the corporation really needs to own it.