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FRCP Still Posing Challenges

Year-old rules for legal e-discovery still flummox both legal, IT departments

It's almost a year to the day since the U.S. government overhauled the Federal Rules of Civil Procedure (FRCP) in an attempt to streamline the country's legal system. So what better time to take a look at how enterprises are dealing with the technology implications of FRCP?

The rules themselves comprise 60 pages of legalese, but the gist is that corporate lawyers must not only produce electronic documents in the event of litigation, but produce them as part of the pretrial process. If they fail, a judge can slam a company with sizable penalties.

For IT managers and CIOs, this means a serious rethink of how data is both stored and retrieved. Increasingly, firms' IT staffs are finding themselves at the forefront of legal disputes, particularly when faced with a "legal hold" request to prevent key emails and files from being deleted.

"Everyone has to contend with the fact that information is recorded and transmitted in electronic format," says Tom Allman, former general counsel of BASF, and co-chair of Lawyers for Civil Justice, which advocated for the amendments. "My belief is that there has been a gradual but important change in peoples' attitudes."

A survey of legal trends by law firm Fulbright and Jaworski released earlier this year appears to bear this out, revealing that 89 percent of U.S. firms now have legal hold policies in place, up from 76 percent just two years ago.

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