Risk-Based Approach to FRCP Rule 26(f) Compliance with DocAve

Post Date: 01/31/2012
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Everywhere you turn, there seems to be a laundry list of compliance concerns and a vital need to control the risk of noncompliance – involving technical controls throughout the lifecycle of content from upload to final disposition. What do these controls involve? Usually, they target some level of reporting, rules around retention, and security controls. Who are the key players? The collaborative roles involved in assuring compliance include Compliance Officer, Record Manager, QA Manager, IT Manager, CIO, Legal, or any relevant person for a given regulation like a Doctor or Stock Broker. For today, we are going to zero in on Meet and Confer as found under FRCP Rule 26(f) and how DocAve eDiscovery and DocAve Archiver provide a winning combination to minimize your exposure and cut costs. What is a Meet and Confer? What does it have to do with FRCP Rule 26(f)? On December 1, 2006, the United States Congress amended the Federal Rules of Civil Procedure (FRCP) in order to account for the rapid increase of technology used in the process of requesting information during the discovery process (in a legal proceeding). Under Rule 26(f), parties must meet and confer at least 21 days before a scheduling conference is held or a scheduling order is due in order to “discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan.” So what does that mean? Before FRCP Rule 26(f), discovery plans were communicated well into the litigation process, sometimes years into a case. Since this has now been placed in the initial “meet and confer”, the time frame has been significantly reduced. Essentially, your e-discovery plans must be shared within the first 99 days of a case. According to an article on FindLaw written by Scott Devens, “The Meet and Confer continues to be a challenge for many attorneys, and the price for poorly managed ones can be high. At best, it simply makes attorneys look bad in front of clients, frustrates the judge and opposing counsel, and results in burdensome costs.” IT Managers could be informed of the request to subpoena records rarely or more often than they would like, but it is often memorable. They have a very limited time to respond to litigation requests with high-quality, defendable, and truthful content, and they need to be thorough and fast. No problem, right? Whether you’re a small organization that has yet to be involved in a legal dispute, or in a large organization that has multiple legal cases going on at any given time, requests to Meet and Confer can be unnecessarily challenging, disruptive, and costly. Where does DocAve fit here? For those using Microsoft® SharePoint® as an enterprise content management repository, DocAve eDiscovery simplifies Identification, Preservation, and Collection of content in SharePoint to ensure that there is no intentional or negligent withholding, hiding, altering, or destroying (spoliation) of content and that any relevant content identified can be quickly delivered to your Legal department. DocAve Archiver ensures that any offloading of content from SharePoint onto other storage devices for cost savings or in accordance with content lifecycle management policies is easily discoverable and retrievable. Think of DocAve Archiver falling into the orange box indicating “Information Management” below, with DocAve eDiscovery helping with “Identification”, “Preservation”, and “Collection”. With this in mind, you can then continue to the rest of the model progression using third-party solutions including LexisNexis.


(Reference: http://www.edrm.net)

During Identification, searchable documents include those residing in SharePoint, connected file shares, or attached storage systems in the event that content that has been externalized for archiving. Searching is full text, and can also include filters based on metadata. Optionally, search results could include previous versions of documents. During Preservation, Holds are placed on relevant documents and deletes are either prevented for end-users or automated retention polices are placed on content inside of SharePoint and/or externalized content. DocAve offers highly customizable and flexible options to implement and manage document Holds and releases of Holds, even in batch mode, to meet your specific litigious requirements and optimize preservation process efficiency. Additional features of DocAve eDiscovery to help with the preservation and collection of content includes: Extended Version Search: Augmented search functionality to include versions of documents and other content. Multiple Legal Holds: Ability to place a single or multiple documents on Hold as well as release from a single Hold without affecting any other current legal requests on content. Concordance Export Format: Export held documents for availability in Concordance System, popularly used among most legal firms we work with. Integration with SharePoint 2010 Legal Hold: Support placing documents on hold from SharePoint 2010 or DocAve interface, including centralized reporting of all holds. Legal Hold and Retention Policy Integration: Prevent "Spoilation" of documents placed on legal holds resulting from automated retention policies.

Not all content is created equal, and as such, we should not have the same controls in place to enforce it. A risk-based approach to compliance means setting the appropriate compliance controls based on the type of content and its sensitivity at different stages of its life cycle.

Whether at the point of upload or in its final stage before being deleted, content must have controls for security, access, compliance reporting, and management of storage.

Stay tuned for additional articles on a Risk Based Approach to compliance to hear how we targeted some of the regulations that are most important to you.

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