Data protection and archiving challenges in face of new FRCP rules

The December 2006 changes to the

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Federal Rules of Civil Procedure (FRCP) and their impact on data storage bring new challenges and opportunities involving data storage and electronic record and document management. Unlike popular regulations, including Sarbanes-Oxley (SOX), SEC regulation 17, FDA 21 CFR part 11 and HIPAA that may only impact certain business, FRCP, while not a regulation, has a much broader impact on those who may be involved in future litigation matters.

In a nutshell, non-legalize description, the FRCP is the rulebook or guidelines for civil suits in U.S. federal courts that define a uniform set of requirements and procedures for trying civil suits in a consistent manner and reduce risks of invalid procedure issues. In addition to the U.S. federal courts, many states also base their rules for civil trials on FRCP.

Challenges VARs will face with the new FRCP rules involve how data and electronic records must be preserved and processed if requested for discovery purposes.
Greg Schulz
FounderStorageIO group

FRCP changes that went into effect December 2006 outline how electronic documents can be used to support litigation proceedings, as well as how electronic documents should be handled to support litigation search and discovery. Electronic documents include traditional documents stored on electronic media as well as unstructured documents. Unstructured documents include email, instant messages (IM), SMS text messages, Word documents, spread sheets and slide decks, among others. The new FRCP rules state that electronic stored information is a formal category for discoverable information and as such needs to be accessible including searchable for litigation purposes.

The new rules require that parties to the litigation be able to maintain discoverable data in its native format as well as produce an inventory of information sources. Note that the FRCP does not require explicitly by law that a company retain every single email or electronic document other than those under existing regulations, however, under the new rules: IT organizations will be obligated to take steps to safeguard information pertinent to a litigation matter. This means that any material that could eventually be involved in a lawsuit needs to be protected and preserved, which extends to email, backup tape and data destruction or deletion.

Challenges VARs will face with the new FRCP rules involve how data and electronic records must be preserved and processed if requested for discovery purposes. The opportunities are to support IT organizations in their efforts to protect and preserve data as well as to secure information when requested for discovery, including radication when applicable. Not only does information need to be preserved and be searchable, there must also be a facility to produce an inventory of information sources available. FRCP changes allow for certain private information, including social security numbers to be radicated (masked), which in the past with paper documents was done with marker pens.

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Some examples of how to add value to your solutions for clients include activities that support electronic discovery, classification and search of email, voicemail, IM and other unstructured documents and records. Another example would be to provide solutions to support litigation hold of documents earmarked for use in litigation proceedings along with support for radication of exempted data, such as personal social security numbers.

Expanding on the above scenarios, you can leverage existing and potential partners to support your customers email archiving and preservation needs in supporting future litigation activity. This means solutions that support email archiving, search and discovery along with services to tie these all together, not to mention more storage to preserve the data. Another opportunity is to create a second set of archived or preserved documents to be kept either onsite or at a safe, secure third-party facility.

Speaking of copies of data, another opportunity to add value and services to support data discovery and litigation management is the migration of data from older and legacy mediums, including tape to newer, easier to work with and access mediums. The opportunity is multifold, including the replacement of out-dated technologies with newer technologies, the ability to search and index data during the migration process as well as make an extra copy for preservation purposes. I almost forgot another opportunity and that is to make sure that all data is encrypted and keys properly managed.

The opportunities are to support IT organizations in their efforts to protect and preserve data as well as to secure information when requested for discovery, including radication when applicable.
Greg Schulz
AuthorResilient Storage Networks

Simply put, as a VAR or service provider, you have the opportunity to step up and help your clients make sure that their email, IMs, office and other documents are protected, secured, archived and accessible for search and discovery if and when requested as well as provide guidance on radication and other discovery support services. The solution could be as simple as partner with others who specialize in the services where you can wrap value around your current solution offerings.

Vendors involved with document management, discovery, data preservation and archiving of email and unstructured data include among other Abrevity, Archivas (HDS), Arkivio, Bycast (HP MAS & IBM MAS), EMC (Various), FAST, Google, IBM, Index Engines, IntraDyn, Kazeon, Mathon, Mimosa, Network Appliance (Kazeon), Nexsan, Njini, Permabit, Powerfile, Scentric, StoredIQ, Sun, Symantec, Verity and Waterford among others.

In addition to working with your existing and new prospective technology and solution provider partners, if you have not done so, talk with your legal counsel to explore where opportunities may exist. An opportunity could exist between you and your legal counsel to help each other leverage each others skill sets and knowledge bases to in turn support your respective clients.

About the author: Greg Schulz is founder and senior analyst of the independent storage analyst firm the StorageIO Group and author of the book Resilient Storage Networks (Elsevier).

This was first published in January 2007

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