CW: IT totally unprepared for impact of FRCP amendments
Computerworld surveys the IT response to the amendments to the Federal Rules of Civil Procedure (FRCP), which became effective today.
About 42% of the 170 IT managers and staffers surveyed said they did not know the status of their company’s preparation for the new rules, while 32% said their company was not at all prepared.
John Bace, analyst from Gartner, blames the GC for not proactively counseling IT.
…But most corporations aren’t that well prepared, which Bace blames primarily on corporation’s general counsel. The changes are to rules that haven’t been modified since 1994, and many corporations’ general counsel were simply not aware of them, according to his research.This is despite the fact that several legal organizations have held numerous seminars over the past few months to inform counsels of the new rules. For example, Fios Inc. in Portland, Ore., said it had held 15 seminars serving more than 1,000 people, in addition to free webcasts.
Corporations’ general counsel should have acknowledged the new rules and had a conversation with the CIO about whether the organization was prepared, Bace said. As with the Sarbanes-Oxley Act, IT has to be involved from the beginning to ensure it can produce the records the rules require, he said.
The rules were intended to give a safe harbor to parties with a proper retention policy and practice–and to allow for the proper disposal of unnecessary data. Also, to give relief from needing to produce (or pay for the production) from legacy systems. It will be interesting to see if the “Save everything” philosophy will be adopted to cope with the lack of counseling on what the rules actually require, especially if there is no compelling event, suit or regulatory requirement to save data. Yet, the exact opposite is happening. Sharon Fisher relates an extreme example of creating even more data and potential litigation risk:
He is now spending $6,000 per month copying tapes – some that go back to email on a Digital Equipment Corp. VAX minicomputer from the 1990s – because he is under a lot of pressure to save every backup tape due to concern about complying with the rules, he said.
General Counsel should be aware that the IT press is now covering the FRCP issue and with the best of intentions, solutions will be forged. Optimally, legal will provide the functional requirements for the technical solution.
The next four months are going to be very interesting as we wade into preservation and production discussions at the early meet and confer. The meet and confer and all it touches will spark much more collaboration (voluntary or involuntary) between IT and legal.
Of the Computerworld survey respondents, 15% said their company was halfway or somewhat prepared, while 5% said their company was completely prepared. Twenty-two percent said they had prepared for the new rules by reading about them, and a few said they had retained inside or outside counsel. Several respondents also said this was the first time they had heard of the new rules.
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There’s still time to get prepared, especially for those companies not yet in litigation. For those facing current litigation, there is an faster timeline to understanding what you have. Many of us in the industry (legal, software, service providers) have been preparing services and products over the last few years to assist.
Filed under Analysts, Federal Rules, Sound Evidence.