Email Archival for FRCP Compliance
The latest changes to the FRCP
(Federal Rules of Civil Procedure)
require organizations to produce all
electronic data communications stored on
physical media in case of litigation.
Since email servers are not programmed
to index data at time of storage, using
an email archival solution has become a
necessity. An email archiving appliance
that stores and indexes data
appropriately allows organizations to
achieve FRCP compliance. No one wants to
be in litigation, but when it happens,
having an email archival solution in
place, can be decisive.
What is FRCP?
FRCP (Federal Rules of Civil
Procedure) is a body of rules that
regulate court procedures for managing
civil suits in the United States
district courts. These rules govern the
conduct of all civil action brought in
the Federal district courts. FRCP covers
multiple areas, including scope of
rules, commencing an action, pleadings
and motions, parties, disclosures and
discovery, trials, judgment, provisions
and remedies.
Latest Changes to FRCP
The FRCP has recently added several
amendments that will affect how
organizations must manage electronic
data. The amendments went into effect on
December 1, 2006 and are primarily aimed
at electronically stored information (ESI).They
require organizations to store data, so
that it can be produced in a timely and
complete manner during legal discovery
proceedings. The new amendments affect
all organizations in all industries.
Archive vs. Backup
Over the past few years, many
organizations have begun to make regular
backups of their data-driven functions
and applications, including email
servers, file servers, hard drives etc.
While backups are a necessity to an
organization's data, there is a common
misconception that this activity is the
same as "archiving." Backing up of an
email server is not the same as email
archival for FRCP compliance.
The difference between backing up and
archiving is that the information is
only retained temporarily in a backup
storage media, then overwritten after a
certain period of time with a new backup
of the system. Archiving indexes and
saves all information into the storage
repository.
Backing up has numerous shortcomings. It
saves data in its native format without
indexing, making it time-consuming to
locate and produce when required. It is
not uncommon for the data tapes to
frequently get corrupted. Information
gathered between backups is not captured
and indexed either.
An email archival appliance saves and
stores data in its storage repository
while indexing at the same time. The
benefit of indexing is that the data can
be found quickly and cost-effectively.
An efficient email archival appliance
allows the admin to search the data
through multiple criteria, including
sender, recipient, attachment, message,
subject and date.
What is Discovery?
Modern civil litigation is based upon
the idea that the parties should not be
subject to surprises at trial. Discovery
is the process whereby the civil
litigants seek to obtain information
both from other parties and from third
parties. Parties have a series of tools
with which they can obtain information:
1) Document requests: a party can seek
documents and other real objects from
parties and non parties
2) Interrogatories: a party can require
other parties to answer 25 questions
3) Requests for admissions: A party can
require other parties to admit or deny
the truth of certain statements
4) Depositions: A party can require at
most 10 individuals or representatives
of organizations to make themselves
available for questioning for a maximum
of one day of 7 hours, without obtaining
leave of court.
Federal Rules of Civil Procedure
FRCP 26(a) (1) and (3)
- that lawyers must discuss ESI in the
initial planning conference and ESI is
specifically included in the initial
mandatory disclosures.
translation:
If ESI is relevant to the case, it must
be included. You must know at the
beginning of a case, what relevant
electronic information you have, where
it is, and how hard it is to access.
FRCP 26(a) (2)
- Disclosure can only be denied when not
"reasonably accessible'
translation:
Unless you can prove that the
information is not accessible, you
must produce all relevant
electronic information from
all active systems.
FRCP 34(b)
- The
requesting party can specify the form in
which ESI is to be produced (native
format).
translation:
This means the output can be in any
format. The opposing litigants want to
track changes to documents and view
metadata, and you have to help them.
FRCP 34(a)
- Any party may serve a request to
produce designated documents,
electronically stored information -
including writings, drawings, charts,
photographs, sound recordings, images,
and other data or data compilations
stored in any medium from which
information can be obtained - translated
if necessary, into reasonable useful
form
translation:
Everything is discoverable as long as it
is relevant to the case, no matter in
what form or where it resides on your
organization. Every server, desktop,
laptop, PDA, mobile phone, etc, is
discoverable, if the data contained
within may be relevant to the case.
FRCP 37(f)
- Safe
Harbor rule. No sanctions if not
produced as a result of routine, good
faith operation of a computer system
translation:
You can destroy data as part of a
routine pre-arranged process,
until you have reason to believe you
might be involved in litigation.
"There is limited safe harbor for
e-document destruction" - Office of
Attorney General, California Department
of Justice
View actual Civil Procedure
cases - Click here
|
|
Event: E-Discovery Workshop
The new and improved DataCove brings organizations a complete package for e-mail storage and archiving. 
