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FRCP & ESI Risk Management |
What is at risk?
In December 2006, the Federal Rules of Civil Procedure (FRCP) were amended to include Electronically Stored Information (ESI). Whilst this may be seen as the US Federal Courts merely catching up with the 21st century, the real news story is the significant impact that the changes will have on the way that companies are expected to store and protect electronic information that might be relevant to current or future litigation.
And don't forget that ESI includes email, which is hard enough to control at the best of times!
In court cases since the changes the US courts have demonstrated that they take a very dim view of organisations that fail to respect the FRCP provisions for legally discoverable electronic information. The risk is that inadequately protecting electronic information could lead to adverse instructions, significant fines or even losing a case that would otherwise have been settled favourably.
The benefits of taking action
Companies that protect ESI with auditable systems and processes clearly have an advantage over those that don't. Not only are they sure that the information they use to mount their legal action is accurate and provably original, they will also avoid the risk of negative court reactions (that could incur significant fines as a result).
An additional benefit is that having a controlled and protective approach to ESI make a lot of business sense as it ensures that company information is fully protected for accuracy and originality. This will help the organisation make better informed decisions regardless of whether there is a risk of future litigation in that area. Furthermore, a comprehensive approach that accounts for non-electronic information within the same management system will give an organisation a truly inclusive view of all corporate information.
Eliminating FRCP/ESI risk
d2OPS international can help you to implement a comprehensive ESI compliance system that will mitigate current and future FRCP risks. Our approach is made up of two key stages:
- Identify, capture and protect current relevant ESI
- define a lexicon of relevant keywords for data searching, using current and potential litigation
- search ALL ESI, with categorisation using the keyword lexicon (using smart software for speed and reduced cost, for example a search of six terabytes of dispersed data can return the results in a matter of seconds)
- human 'sifting' of returned ESI in an organisation's own document management sytem to identify relevance and authenticity
- protection of identified ESI in a secure data 'vault' to deliver and manage provable originality
- Audit organisational processes in order to design and implement a rigorous system to correctly manage FRCP/ESI risks for the future
This approach has been designed to help in-house counsel in large and multi-national corporations significantly reduce costs by quickly identifying all of the electronic data relevant to a litigation matter (or potential litigation matter) within minutes/hours rather than days/months. Data can be delivered directly to an existing document management/litigation support system for legal review and analysis. Thereafter newly created ESI will be automatically handled in the most appropriate manner to reduce FRCP risks in line with audited business processes.
Useful links
US Federal Courts, Federal Rules of Civil Procedure (.pdf)
LexisNexis, FRCP Readiness: 10 Practical Tips for Paralegals