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Fortiva Study Gauges FRCP Progress

TORONTO -- As the one-year anniversary of the amended Federal Rules of Civil Procedure (FRCP) approaches on December 1, a survey of professionals directly involved in legal discovery shows that a significant number of businesses have been negatively impacted by the challenges of e-discovery. In fact, one-fifth of the professionals say their business has settled a lawsuit to avoid the cost of recovering and searching through electronic documents such as email. The survey, conducted by iTracks for Fortiva, a leading on-demand email archiving provider, also showed that a majority of businesses are now actively taking steps to reduce risk and meet FRCP requirements by improving their e-discovery processes.

As more and more lawsuits focus on electronic evidence, the cost – and risk – of being unprepared for e-discovery keeps going up,” said Eric Goodwin. “It’s clear that in the year since the amended FRCP went into effect, the majority of businesses have recognized that fact and are doing something about it. There’s still a long way to go, but these results are very positive and they indicate that most companies are on the right path.”

The new FRCP states that all email is discoverable, and that parties to a lawsuit must meet within 99 days of a civil action being launched for a meet and confer session to disclose what information will be produced and the format in which it must be presented. As a result, businesses need to know where all emails are stored and for how long, and they need to ensure that they can access those emails and present them to opposing counsel in a reasonable timeframe. The new rules also require businesses to be prepared to enforce a litigation hold on any email that might be relevant to a potential case, meaning that those emails cannot be deleted until the issue is resolved.

Based on the results, nearly half (47 percent) of respondents do not agree that their legal team can effectively review relevant email in the 99-day window before the meet and confer session. To address this, 51 percent say they have implemented, or are planning to implement technology that allows them to easily search and review email. Similarly, more than one-third of businesses (36.7 percent) are already enforcing a formal retention policy for email, while another 40 percent are currently in the planning stage to enforce a formal policy.

Fortiva Inc.