FRCP: One legal pro's tips for complying with federal rules

It may not sound like the best way to spend the holiday season, but legal pro Stephen Whetstone says companies should take a good hard look in the near future at how they preserve their electronic data.

According to Whetstone, a former litigation partner at Boston-based Testa Hurwitz & Thibeault, many companies have lagged behind in implementing plans to comply with the recently-amended Federal Rules of Civil Procedure (FRCP) that mandate how companies must preserve and share their electronic records for litigation purposes. A study conducted by Osterman Research this summer backs up Whetstone’s point, as it showed that less than half of businesses polled said they could not meet federal e-mail and discovery rules. But despite this, Whetstone thinks that most firms are paying a great deal more attention to the newly amended FRCP than they were when the rule changes took effect last Dec.1.

“Clearly, the culture in law firms and companies has changed,” says Whetstone, who currently works as the vice president for development and strategy for Stratify, an e-discovery service provider in Mountain View, Calif. “They all are paying attention to it. Many firms have entire departments focusing on electronic data discovery needs. Five years ago as a rule, that didn’t exist.”

Businesses that are behind in their efforts to comply with the FRCP should start by getting everyone within the company on the same page, Whetstone recommends. Because many companies have separate legal, IT and records management departments, many of them have difficulty in coming together around a common electronic document retention scheme. Once all the departments are brought into the decision-making process, they’ll have to craft a timetable for their compliance plan, as well as map out when the preservation of records is likely to be triggered by legal action, Whetstone says.

What can make this tricky, Whetstone notes, is that the FRCP doesn’t explicitly codify firms’ duties in preserving documents that must be retained for the litigation discovery process. Rather, the FRCP simply mandates the two parties engaged in litigation come together and decide for themselves what they will and will not share during litigation. Thus, a firm without coherent preservation policies could find itself paying major penalties during the discovery process if it promises to produce documents that it in fact has already destroyed. Morgan Stanley, for instance, was fined $15 million by the SEC for failing to produce e-mails promptly during a discovery process.

Another issue with FRCP compliance, Whetstone says, is that there is little agreement on exactly how electronic documents should be presented. According to Whetstone, many FRCP legal disputes have centered around whether electronic files should be presented in their “native” forms - that is, whether they should include digital time stamps of when certain documents were altered or edited, whom they were accessed by and whom they had been sent or forwarded to. In many cases, attorneys would prefer to present their clients’ documents in simple PDF formats that don’t reveal any of this additional information.