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In business litigation battles, IT departments can find themselves on the front lines. The Federal Rules of Civil Procedure call for businesses to retain and be able to produce electronic records…or they’ll pay the price.

New amendments of the Federal Rules of Civil Procedure (FRCP) relating to electronic records went into effect on December 1, 2006. They require all businesses to retain emails, attachments and instant messages in the event of legal action, and be able to retrieve them if economically feasible. The FRCP also requires company attorneys and IT managers to be able to show how electronic records are stored, what mechanisms are in place to retrieve them, and when and how they are deleted.

Businesses must decide which records they are legally required to save, and which they can safely throw out, through a process known as e-discovery and archiving. Until recently, businesses made their email archiving decisions based on a group of unrelated court rulings, balanced by guesswork by their corporate legal teams. The new amendments change all that, creating a dangerously confusing situation.

E-discovery and archiving is a systematic approach to finding, saving and protecting the data contained in email messages so it can be accessed quickly at a later date.  In the past, companies often relied upon employees to maintain their own individual email archives. The IT department would back up email, but not in a manner that made messages searchable. If a specific email message needed to be traced, it often took weeks to find it. Under the FRCP, it has become necessary for many IT departments to manage the entire company's email archiving in bulk so specific messages can be located in minutes, not weeks.

The following FRCP amendments are among those that directly affect IT departments::

• Rule 16(b) states that a description of all electronically-stored information (ESI) must be presented within 99 days of the beginning of a legal case. This effectively calls for IT to establish e-discovery and archiving policies.
• Rule 26(a) states that email and other ESI can be searched without waiting for a discovery request. This requires IT to put e-discovery and archiving policies into effect so information can be found quickly.
• Rule 26(b) states that a company need not provide discovery of ESI if there is an undue cost.  This requires the organization to prove that installing email archiving software is an arduous expense.
• Rule 26(f) requires both parties involved in litigation to discuss any issues relating to preserving discoverable information. This requires counsel to know how emails are being retained and how they can be searched and retrieved.
• Rule 34(b) requires the requesting party to designate how it wants ESI to be produced, and requires the responding party to identify how records will be produced. This means IT must be aware of how emails are stored — on disk or tape, for example — and how they will be retrieved.

Although the FRCP amendments don’t stipulate fines for noncompliance, judges have fined companies for not responding to a discovery request fast enough.  In 2005, General Motors was fined $700,000 for delaying a discovery process by 98 days.