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FRCP compliance—still a ways off

This article appears in the issue May 2007, [Vol 16, Issue 5]

When the changes to the Federal Rules of Civil Procedure (FRCP) went into effect at the beginning of the year, there was a reasonable expectation that companies would be poised and ready to adopt new procedures. The rules require all companies to know exactly where their electronic documents are stored and to be prepared to make corporate e-mail available to the court in case of a lawsuit. Based on widely publicized corporate transgressions, one would expect that implementing the new policies would become a top priority. That’s far from the case.

More than three months into the mandate, a majority of businesses are still trying to find their way, according to a summary of a recent study by Fortiva. Fortiva provides compliance software and services, so it has a vested interest in the market. Nevertheless, the survey is statistically valid and noteworthy.

The company performed the study the last week of February and just released its very sobering findings. Ninety-four percent of those responsible for e-mail policy do not feel their organization is completely prepared to meet FRCP requirements. Remarkably, the study found that only 38 percent of the respondents said they were familiar with the changes.

Furthermore, some 45 percent of the respondents reported they have no retention policy, and only 8.4 percent have met one of the key requirements in place: implementing a litigation hold procedure. Plus, although 10 percent have made changes to the retention policy to meet the FRCP, more than 20 percent are still in the planning stage; 36 percent were not sure if changes were planned.

Other findings include:

  • 56.7 percent of respondents who are responsible for e-mail policy are in IT, while 6.8 percent are in the legal department;
  • 25.4 percent of respondents said their organizations have responded to an e-discovery request at least once in the past three years, while 24 percent didn’t know/ weren’t sure;
  • 45.6 percent of respondents said their organizations do not have an official e-mail retention policy, and that users keep their e-mail as long as they like.


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