e-discovery 2.0

There have been several recent press releases from enterprise software companies proclaiming FRCP “compliance,” which certainly sounds appealing.  But, the use of that term begs the question:  how does a search technology (or methodology) become FRCP “compliant” and is that goal even possible?

IBM launched the first salvo:

“The software will allow companies to move from scattered, point-solution approaches to a disciplined approach that controls electronic information, helps support Federal Rules of Civil Procedure (FRCP) compliance,…”

And, Autonomy quickly followed suit:

“The Autonomy pan-enterprise search platform automates the retrieval, processing, and management of all information throughout a global organization irrespective of languages, operating systems, and file types, avoiding non-FRCP compliant search techniques.”

I’m more than tolerant of both puffery and marketing-speak (though woe to those who forward such releases to Monica Bay), but this notion of “FRCP compliance” seems to take advantage of an already bombarded buying public, who have likely grown weary of FRCP articles, CLEs, and maybe even blogs posts.  Nevertheless, it seems useful to really tease out what the FRCP means and does not mean in relationship to e-discovery and enterprise search.

So, in an attempt to debunk this “compliance” myth, I thought I’d devote this blog post to demystifying some of the inaccurate notions about the FRCP.

Federal First

Initially, it’s important to note that the Rules only apply to litigation within the United States Federal court system.  State court litigation, international lawsuits, arbitrations and administrative actions (just to name a few) aren’t under the aegis of the Rules.  While it’s true that certain state courts (Minnesota for example) have selectively adopted the new discovery provisions, most have not.  So, the first step is to check your venue.  Then, assuming the Rules do apply because your organization is in Federal litigation, the impact, while still not crystal clear, does take on more definition.

Relevancy Filters

As a starting place, the discovery process (as part of litigation) is fundamentally limited by Rule 26 to information (electronic and otherwise) that is “relevant” to the case at hand (i.e., “relevant to the claim or defense of any party”).  This distinction is critical because for the most part it prevents the responding party from having to cast a company wide net for all data, a task envisioned by many content management systems.   Certainly, the ability of certain systems to access all user created data is valuable when searching for relevant data, but there are many ways to skin that cat.

No Express Retention or Preservation Duties

Legions of articles proclaim that the amended Rules create wholly new duties to retain information in general, as well as infusing new duties to preserve electronic data once litigation is anticipated.  Instead however, the new Rules expressly disavow creating truly new retention or preservation duties.  While it is undoubtedly a good practice to have a retention policy, given the welter of statutes and regulations that do create retention duties, the Rules do not mandate that a company create one ahead of litigation.

What is true, however, is that the new Rules have powerful implications for preservation once litigation is likely because of the requirements to understand, negotiate and produce relevant information early in the litigation process.  Under the new Rules, it is critical to be able to identify and retain potentially relevant data once litigation is filed (or is “reasonably likely”).  And yet, the burden of placing a legal “hold” on data, while often significant, certainly can be achieved without a formal document retention/deletion policy.  Again, the litigation “trigger” is key.

“Records” Aren’t the Focus

Continuing on this theme, but in a slightly different vector, there are differing opinions about the impact that the Rules have on “business records.”  This issue is nebulous since it is easy to confuse potentially relevant data corresponding to litigation with “business records,” which are often used in two different contexts.  Initially, there is the “business records” exception to the hearsay rule, which is quite specific and affects the admissibility of evidence in court.

The second, broader definition applies to organizations as they attempt to define a records management program to meet the numerous state, local and Federal mandates.  Commonly, as part of this complex initiative, companies will create records retention programs that specifically define official “records,” unofficial “records,” “non-records,” as well as specific retention periods for certain types of records.  Once the company’s records protocol is put into place there may be some downstream nexus with the Rules, but it won’t manifest itself until Federal court litigation arises, as described above.   The most common intersection occurs when a records retention policy prescribes a deletion event that contradicts the legal “hold” requirements for a record that is likely to be relevant to litigation.

In sum, the foregoing describes the role the FRCP plays in Federal court litigation.  It should be clear that the important, yet relatively narrow, use cases do not include any general compliance mandate in the absence of specific litigation.  I think it’s important to separate myth from reality when it comes to understanding how and when the revised Rules really do come into play.  Failure to do so can create an unpleasant scenario where your organization will either under- or over-prepare for these important litigation guidelines.

On August 5, IBM announced eDiscovery Manager, which it says “enables organizations to better control the eDiscovery process by bringing key eDiscovery tasks in house. This helps clients more easily manage electronically stored information; provide earlier insights into collected evidence; and prioritize downstream evidence review, analysis and production.”

Taken at face value, this is potentially very significant. IBM is the world’s second-largest software company and its Lotus Notes/Domino email system is used by approximately one-third of corporate America. So I decided to dig a little deeper to understand exactly what IBM’s new product can do, and which customers it can best serve.

Product Capabilities

The first and most important thing to understand about eDiscovery Manager is that, before you can use it, you must first buy and install IBM’s unstructured data stack. This comes in two forms: you can either deploy IBM Content Manager and IBM Common Store; or, you can choose Filenet P8 and Filenet Email Manager. Either way, the deployment time is months and typically involves an army of consultants.

For data in IBM’s content management solutions, eDiscovery Manager enables users to search and export. There is no review functionality, no tagging, and no analysis. The limitations in functionality stem from eDiscovery Manager not really being a new product; rather it’s a rewrite of an old product (eMS or email search) with a new AJAX-based user interface.

Target Customers

The best customers for eDiscovery Manager are those enterprises which have large amounts of data in Filenet P8 / Email Manager or IBM Content Manager / CommonStore. For those enterprises, it will be a useful tool, which IT departments will use to identify and collect data, just as they use utilities like ExMerge for Microsoft Exchange and Robocopy for file shares. Most companies will then choose to process, review and analyze data from all these different repositories with an e-discovery solution.

To my mind, what’s more significant than the announcement of eDiscovery Manager is the fact that IBM is waking up to the opportunity in e-discovery. There’s no doubting the company’s reach and technical prowess, and it will be interesting to watch what future products (e.g., “IBM eDiscovery Review”?) are in the works.