Understanding E-Discovery and FRCP IT Requirements

How to bring your network and data into compliance with E-Discovery and the Federal Rules of Civil Procedure

Background

To prepare for trial, attorneys engage in discovery, a process of exchanging information between parties about the witnesses and evidence they intend to present at trial. Parties exchange both digital and hard-copies. As businesses increasingly store data in electronic formats, electronically stored information (ESI) is becoming the standard form of discovery in many cases.

In 2006, the term electronic discovery (e-discovery) was coined in the Supreme Court’s amendment to the Federal Rules of Civil Procedure (FRCP). FRCP delineates the rules for discovery and provides guidance on how ESI should be managed during discovery.

Who Needs to Comply

While attorneys are ultimately responsible, the IT department is commonly enlisted during discovery. Responsibilities of the IT department will be to locate all ESI relevant to the case and present it to the attorneys in a timely manner.

Risks in Non-compliance

Failure to identify and locate files requested during the discovery period would result a delay in the case as well as financial costs to both legal teams.

Key IT Requirements

In order to comply with the Federal Rule of Civil Procedures during discovery, here’s how Varonis solutions can assist in managing your electronic information.

Requirement Description Varonis Product/Feature
Rule 16 (b) Scheduling (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared. — The purpose of this 120 day rule is to save both the court and attorney time. Both parties must prepare to address its plans for eDiscovery and document production within 120 days of a company filing a lawsuit. Failure to identify and locate ESI can cost the legal teams the ability to make arguments as electronic information would not reasonably accessible. This means that legal teams must have complete understanding of their ESI. Without an efficient, incremental data classification and indexing engine like Varonis’ IDU Classification Framework and Varonis DatAnswers, locating and retrieving all relevant ESI within the 120 day timeframe can be daunting. DatAnswers maintains an index so that files containing specific terms can be found at any time. The IDU Classification Framework can automatically locate ESI based on a multitude of criteria: keywords, patterns, date created, date last accessed, date modified, user access, owner, and many more making it possible for IT to prepare for eDiscovery quickly and with minimal resources. The IDU Classification Framework is an automated classification engine; DatAnswers is an automated enterprise search engine. They do not require users to manually flag or tag data (though that is possible, too). They classify and index data across multiple platforms (Windows, NAS, SharePoint, etc.).
Rule 26 (a) Required Disclosures (ii). a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; Critical to discovery, Varonis DatAdvantage can identify and locate all ESI, show which users and groups have access, and provide an audit on all ESI, such as when the file, directory services object, and email was open, edited, deleted, etc. DatAdvantage can also show trends in a user’s data access behavior and can create alerts when behavior becomes abnormal. Once you have a high level overview of where relevant electronic information is stored, there are additional steps that you can take to automate the eDiscovery process. Varonis Data Transport Engine provides the flexibility to configure rules, based on your eDiscovery criteria, and then automatically move or copy relevant ESI to a secure folder or SharePoint site for legal teams to review and prepare for court.

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