Press release: EDEN PRAIRIE, Minn., Dec. 1 /PRNewswire/ — With the Amendments to the Federal Rules of Civil Procedure (FRCP) taking effect today, litigants that can prove significant time or cost burdens of retrieving certain electronically stored information may not be required to produce this information in court proceedings. However, while these amendments portend a sea change in the way electronic discovery is conducted, many companies lack the systems and processes to demonstrate which of their data sources are accessible or inaccessible.
To help companies address these new provisions, Xiotech(R) is providing a new Accessibility Readiness assessment service. Leveraging Xiotech’s Business Consulting Group, the service is designed to help companies better understand their data, including where it is located and how it is mapped within data sources, resulting in a plan that helps companies determine which information a company should declare as inaccessible.
“There is a presumption underlying the changes to the FRCP that companies involved in litigation understand where all of their records are, as well as the relative accessibility of those records,” said Michael Clark, managing director of EDDix LLC. “Our view is that corporations that wait until the ‘early meet and confer’ stage to map their records topology are setting themselves up for some nasty surprises which will be both expensive and will potentially disadvantage them in litigation. There is no question about the fact that the new rules provide an opportunity for one party to gain the upper hand in litigation — leverage will likely accrue to the party that is best- prepared.”
The FRCP Amendments state that companies in litigation do not need to provide electronically stored information from sources that are identified as “not reasonably accessible because of undue burden or cost.”
Xiotech’s Accessibility Readiness assessment service provides the following:
1. Analysis of a company’s IT infrastructure, including on-site, remote and partner data stores. 2. Evaluation of a company’s data types including the difficulty of collecting, processing and reviewing each data type to establish the burden and cost of each endeavor. 3. Evaluation of a company’s software and hardware configurations to document timelines for hardware/software upgrades, data migrations and decommissions. 4. Selection and preparation of internal and external personnel who can testify on the inaccessibility of this data to the courts.
“While this new accessibility framework seems fairly straightforward, most companies aren’t prepared to identify proactively the wide range of data types that they will collect and produce in the accelerated time frames,” said David K. Isom, co-chair of Greenberg Traurig’s national e-Discovery & e-Retention Practice Group. “The requirements of the new rules of civil procedure suggest that companies rethink their technology so that they can classify and retrieve data more readily.”
With the new service, Xiotech’s Business Consulting Group also provides companies with advice on how to improve management of their electronically stored information to help them better prove inaccessibility in future instances. For example, the consulting group will work with a company to map all relevant data sources and build a compelling “burden” matrix that evaluates and weighs objective factors for a company to demonstrate that certain categories of information are accessible versus inaccessible. While some companies will attempt to do many of these tasks themselves, there is a significant benefit to having a neutral third party implement industry best practices. Recently, there have been several high profile electronic discovery cases, such as the Coleman v. Morgan Stanley decision, where companies that have tried to handle these complex tasks themselves have been severely penalized, both in terms of regulatory sanctions and costly judgments.
“Many companies have a staggering array of electronically stored information, which includes legacy data stores, archived data, networked systems, orphaned media, etc., so they have no idea what the time or cost would be to find and present this data during litigation,” said Dean Gonsowski, managing director of Xiotech’s Business Consulting Group. “It’s a complex, technical process, but with our data storage and legal discovery experience we are in a unique position to facilitate communication between the often disparate worlds of IT, records management and legal. As a result we can help companies understand and develop best practices surrounding the collection and production of their electronically stored information so they can comply with the new rules.”
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