The Letter of the IT Law

How companies are addressing the "capability gap" in compliance with the amended Federal Rules of Civil Procedure.

Lawyers may have been the only ones paying attention, but it's been just over a year now since the Federal Rules of Civil Procedure (FRCP) amendments on e-discovery went into effect, necessitating that companies take appropriate steps to improve how they respond to e-discovery requests, which basically refers to the methods by which electronically stored information is exchanged during a litigation process. The numbers from a recent survey on corporate e-discovery by on-demand archiving provider Fortiva show a rising problem in managing this information, as well as a rising number of resources devoted to solving it.

The first step is acknowledging there is a problem, and one-fifth of companies surveyed admit that their business has opted to settle a lawsuit to avoid the cost of recovering and searching through electronic documents. Nearly half (47%) of respondents also admit being uncertain that their legal team can effectively review relevant e-mail in the 99-day window allowed under the law.

To address this costly "capability gap," 51% say they have implemented or are planning to implement search and review technology for e-mail. However, the tools must be backed up by a strict policy environment. More than one-third of businesses (36.7%) are already enforcing a formal retention policy for e-mail, while another 40% are currently in the planning stage to enforce a formal policy. Another 36% of respondents are currently planning to create and enforce a formal "litigation hold" process for e-mail and other data.

Other findings from the survey relevant for manufacturers include:

  • 37% of respondents conduct more than 21 searches through old e-mail to gather information for legal reasons each year.
  • Nearly half of respondents (40%) report that their organization searches through e-mail five or more times each year in response to a formal legal discovery request.
  • 35% are not confident that e-mails are fully reviewed to ensure attorney-client privilege is not waived before being sent to opposing counsel during discovery.
  • Of those who are familiar with the costs of litigation, more than half (51%) claimed the average cost of litigation (excluding settlement costs) was over $200,000, with 8% putting the average cost over $1 million.

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