E-Discovery Rules Force Firms to Get Their (Record) Houses in Order

Lora Bentley

Lora Bentley spoke with Robert Pease, MessageGate marketing VP. The e-mail governance software vendor recently announced a new partnership with records management software provider AXS-One that will help customers deal with the new electronic discovery requirements in the Federal Rules of Civil Procedure.


Bentley: How does e-mail categorization work?
Pease: It was designed to make the archiving process more intelligent. Now, as the discovery rules have been rewritten a little bit, we're finding a lot of interest - rather than just slapping an archiving system in and letting it perform much like a flight data recorder does on an airplane - people want to be a little more proactive about what they're saving and how they're saving and getting to it.

Discovery generally doesn't happen based on data that was sent that day. Instead it's going to be, "Gee, I need everybody that was in the fixed income department three years ago." As records are currently saved, associating someone's department with their record upon archive is not done. What companies are forced to do is get a list of employees and run a custom query to bounce off those employees and find out who was there then. And you have to make sure it's accurate, and so on and so forth. What categorization can do very simply is, as an e-mail is ingested into an archive, it can do a lookup on [what] the department is and it'll just append that to the record.


Bentley: What is it about the new Federal Rules of Civil Procedure that makes the partnership with AXS-One ideal?
Pease: It's the notion of "knowing before you go." If there's a matter or an incident and counsel has to sit down with opposing counsel, knowing what you have [in terms of electronic documents], what you don't have and where it sits beforehand is, from what we're hearing, a huge driver. What categorization does in conjunction with an archive is very much in alignment with what the new rules [require]. We've seen customers sort of in a range of positions on it. One big energy company we deal with, their general counsel was convinced that if you're not doing this policy-based categorization, you're running the risk of not being in compliance with the rules and exposing yourself to penalties. Others are interested but sort of waiting to see what the reality is going forward.


Bentley: Do you have any indication as to why companies have been so ill-prepared to meet requirements like these?
Pease: It's a fascinating question. You still sometimes have to convince people that e-mail is a core business transaction medium. It's a core place that things go on; it's records. The people you don't have to convince are the ones that have been recently burned. Either they've been recently sued or they had to [restore records] from backup tape. ... There's a consistent song that gets sung in companies. Legal says, "I need all of those e-mails from the past three months," and IT then has to say, "That's going to take a lot of time, effort, energy and cost." Of course, legal's response is, "Well, I can go back and find all my e-mails. Why can't you do this?" I think there's been a misalignment there in terms of understanding. But that's normalizing some now as those two sides of the house are coming together to get this a little more streamlined with a focus on costs.

What we have seen is that, instead of just reacting to an inquiry and getting your [records] house in order, there's enough breathing room now as companies [become more proactive]. ... Our approach is pretty practical. You can't boil the whole ocean at once. It's about starting with meaningful, sizable things. Even with categories, less is more. Simply having a "privileged" category, an "executive" category, a "non-business" category and maybe one that tags by department code or country of jurisdiction will get you far.

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