The recently adopted amendments to the Federal Rules of Civil Procedure (FRCP) are undoubtedly impacting the way that organizations are run - from managing their electronic data and investing in new technology to improving corporate governance policies. According to Osterman Research, nearly half of organizations it surveyed did not understand the new regulations well enough to fully comprehend the impact these rules will have on their data retention practices, reinforcing the need for business and IT executives to assess the impact on their businesses.1

 

The FRCP is a body of rules focused on governing court procedures for managing civil suits in the U.S. district courts. A number of revisions to the FRCP went into effect in late 2006. In a nutshell, the changes to the FRCP require organizations to manage their data in such a way that it can be produced in a timely and complete manner when necessary, such as during legal discovery proceedings.

 

The FRCP applies to virtually all organizations in all industries. If an organization can be impacted by civil lawsuit, then the FRCP should figure prominently in that organization’s data management strategy.

 

The FRCP present significant challenges to organizations of all sizes on several levels: corporate legal counsel will need to learn what impact the FRCP changes will have on their organizations, IT managers will wrestle with potentially significant investments in technology that will be required to adequately preserve electronic data, and senior managers will need to evaluate and improve their corporate governance policies and procedures to meet the new requirements.

 

With the new amendments to the FRCP, companies must focus on how they address data identification, protection and archiving requirements today.

 

The Importance of Archiving Under the New FRCP

 

The new amendments to the FRCP, added to other industry regulations, have placed a burden on businesses to retain vast amounts of data for lengthy periods of time, and established requirements to provide proof of authenticity with audit trails. What’s more, companies need to institute processes to safely dispose of data that has outlived its usefulness.

 

Because legal discovery requests are commonplace today and there is little time to retrieve documents to satisfy these demands, companies need to create well-defined archive processes that allow them to quickly respond to e-discovery requests and comply with regulations.Instead of proper data retention and disposition being simply a best practice for organizations to follow, it is now a legal obligation that can carry with it serious consequences if managed poorly.

 

Archiving is a critical part of this process. Unfortunately, many businesses think they are archiving their data by performing tape backups. The purpose of backups is to restore the primary disk array in the event of multidisk failure, site disaster or to restore to a different point in time, perhaps before a corruption of the data occurred.Backups are for a contingency, an eventual restore.Traditional requirements for high availability data solutions are not the same as archive requirements, and backups fall significantly short of meeting new requirements for random access, longevity, permanence, authenticity and cost. Finding and retrieving older documents in support of e-discovery requests is nearly impossible with a tape backup solution.There is a better way.An effective archive strategy driven by business requirements is vital to ensuring compliance with regulations and mitigating business risk.

 

In addition to helping businesses adhere to the FRCP, businesses will find a variety of benefits from archiving, including:

 

Reduced business risk. There are a variety of regulations that impose data retention and management requirements on organizations operating in the U.S. A properly configured and managed archiving system makes production of data in response to an e-discovery order far simpler than if backup tapes must be restored and searched for the same information. Archiving solutions that provide longevity, permanence, random access and a low total cost of ownership can help businesses easily access critical data to comply with these growing regulations and mitigate business risk.

 

Storage optimization and reduced cost. Email use is growing dramatically, and this increased use coupled with growing use of attachments and multimedia files means that email storage is becoming a critical issue. Combined with unparalleled growth in unstructured data, a new strategy must be developed to more effectively store and manage this data.Archives consist of largely static data.If that data is included as part of regular backup and restore, this means that organizations are constantly backing up the same static data over and over, resulting in a significant cost. This approach forces businesses to continually buy larger servers and more storage over time and puts the backup process at risk. By managing the archiving process and moving fixed content data to secure archives that ensure retention and allow for fast, easy access and retrieval of data, this fixed content data can be removed from the backup window.Additionally, effective archives should have a low total cost of ownership, with low acquisition costs, low power and maintenance, and few technology migrations required over the archive life.Businesses can realize new efficiencies and save significant time, money and resources.

 

Improved business operations. When working with a long-term archive, information can be captured from a variety of data sources, indexed and placed into an archive without any intervention by IT staff or end users. And, by reducing human intervention into archives, valuable IT resources can be moved to revenue-enabling projects. Archive solutions help businesses provide visibility into data and unleash its power to help them gain competitive advantages and support revenue growth. By bringing random access and search and retrieval capabilities to long-term data archives, information can better support business initiatives and enable improved decision-making to drive top-line growth.

 

Other benefits. An archiving system can also assist an organization with recovering from a disaster by providing an off-site copy of current data. It can help in resolving disputes prior to legal action by preserving all necessary ESI and the context of this data, and it can help an organization to assess the viability of its legal position at the commencement of a legal action, among other benefits.

 

Understanding your Archiving Options

 

Using technologies specifically designed for archiving and e-discovery requirements are key to implementing a successful solution. An important consideration for satisfying FRCP, compliance and other data retention issues is the choice of hardware, software and media on which to archive data on a long-term basis.Considerations should include data permanence, authenticity, recoverability, cost, security, ease of data retrieval, reliability and scalability. RAID, tape, WORM optical, DVD and other technologies or some combination of the above can all be used for archival storage, but there are trade-offs to consider.

 

There are several disk-based archiving products available today that provide functionality for the preservation of business records with content-aware or content-addressed storage approaches. However, the cheaper the disk, the more likely its failure and the more important the requirement to backup data to low-cost disk or tape.The end result is a growing primary and secondary disk storage and with backup windows that are longer than the hours in the day to complete them.Furthermore, disk technology will require new archive storage acquisitions every three to five years, perhaps as many as ten times over the life of the archive.Another common fallacy is to consider the initial acquisition costs of the archive platform.Future acquisition costs, number of migrations over the life of archived data, cost of operations and ownership in terms of maintenance, power, cooling and expansion should all be considered.

 

At first glance, tape may appear to be an appropriate technology for long-term archiving, but closer inspection exposes technical, operational and financial concerns. Tape struggles as an archive medium because it lacks random access performance for e-discovery. Tape also requires special environmental conditions and periodic refreshing if used for long-term data storage.

 

High-density optical media is a cost-effective approach that offers hardware-based WORM capabilities to ensure authenticity, random access, permanence, removability and very long media life. Optical also eliminates the need to migrate data over the useful life of the data via backward compatible support and a noninvasive roadmap to future generations. Today’s best practices often combine technologies such as RAID disk and optical technologies to capitalize on the strengths of each and mitigate business risk.

 

Next Steps for Businesses

 

In response to the new FRCP amendments, there are some key steps that organizations should take:

 

  • Understand your organization’s exposure to compliance and regulatory risks.
  • Determine your business requirements in cooperation with IT, legal, records management and compliance.
  • Review and assess existing document retention policies and practices.
  • Investigate the amount and cost of preserving, restoring, processing and reviewing relevant electronic data.
  • Suggest new solutions that meet business and IT requirements.

In short, FRCP makes e-discovery relevant to everyone, so commit early to a well-defined service level for the process.

 

Responding to the new FRCP amendments is critical to all businesses as they raise the importance of data lifecycle management to a new level. Now that data is being governed by industry standards and regulations, there are serious consequences for businesses and individuals if this process is not managed properly.

 

In examining the issues brought to the forefront with the newly adopted amendments, it is clear that the combination of records management best practices and technology play a significant role in managing the growing amount of electronically stored information. Disk, tape and optical technology can all be used, but each introduces strengths and weaknesses that must be accounted for in an overall risk assessment. The technology you select will depend on the business needs and requirements of each company and choosing an inappropriate archive technology can have a major impact on your business. Consider following best practices to preserve your valued assets, resolve regulatory risk and provide cost savings to the business.

 

Reference:

  1. Osterman Research. "LiveOffice Survey." Osterman Research, June 2007.

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