Ratcheting Up' Awareness of the Rules Changes}
Craig Carpenter, general counsel and vice president of marketing at Recommind, an enterprise knowledge management/legal hold/enterprise search company, has wat
Craig Carpenter, general counsel and vice president of marketing at Recommind, an enterprise knowledge management/legal
hold/enterprise search company, has watched the evolution of the way the
federal courts approach the issue of digital data as evidence for about eight
"The biggest thing about the FRCP [rules update] is that it ratcheted up awareness of storing digital data for litigation purposes," Carpenter told eWEEK. "ESI [electronically stored information] was always covered in the rules. Most people didn't realize that; they thought the revisions actually created [the storage/access requirements]. But that isn't the case."
The 2006 changes in the rules served to clarify the way digital evidence should be stored and accessed.
Businesses fall into three camps when it comes to the FRCP rules changes, Carpenter said.
"First there are the Pfizers of the world, who've been dealing with this since long before the revisions. They already have processes built into place. What they're nervous about is that all the technology they have isn't really equipped to handle these new requirements," Carpenter said. "So they're actually building in more-and newer-infrastructure."
An example of this, Carpenter said, is a major credit-card company-a client of Recommind's-that had a new e-discovery project planned for next summer but moved it up to the beginning of 2009 for this reason.
The second group, Carpenter said, involves businesses "that hadn't had to deal with this in the past, but the revisions woke them up, and they've started to address it. These are more kind of 'mainstream America' companies."
Group No. 3 are those who didn't know what was happening beforehand and still don't know, Carpenter said.
"The good news is, they don't get sued very often. The bad news is, when they do get sued, they're in deep trouble," Carpenter said.
Carpenter said that he consulted with an auto manufacturer a year ago when it wanted to institute an e-discovery/archiving system for its terabyte of e-mail-based data.
"They were trying to have five paralegals go through, one by one by one, using Windows desktop tools, trying to find certain e-mails," Carpenter said.
"We tried to do the math for them and said, 'Look, this is going to take you five years.' I don't know what they eventually did, but hopefully they got a service provider to help them."