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E-Discovery and the Federal Rules of Civil Procedures

Book Description

The Federal Rules of Civil Procedure (FRCP) govern the activities of all US federal civil courts. They contain discovery requirements that any company must satisfy when it is the subject of a civil action, such as an employment discrimination lawsuit or an intellectual property dispute.

FRCP Updated

The FRCP have been amended and updated to take account of electronic information. Attorneys can no longer just throw individual E-Discovery requests 'over the wall' to the IT department. Indeed, the pitfalls associated with E-Discovery represent one of the greatest risks that organisations face in litigation today. If a defendant fails to produce e-mail evidence when required, the courts will assume that this evidence has been wilfully destroyed or withheld.

Records management professionals, IT personnel, compliance experts and general counsel all need to work together to develop a comprehensive framework for handling E-Discovery requirements.

This pocket guide provides expert advice on how to build such a framework within your organisation in order to assess and to manage the risks associated with E-Discovery.

Benefits to business include:

  • Understand what the FRCP requires Any entity that is, or may be, a party to a federal civil lawsuit should be familiar with the FRCP. This pocket guide explains the FRCP and looks at how a business is expected to handle an E-Discovery request under the recent amendments to these rules.

  • Prepare for the worst There are many situations that may result in a lawsuit, such as the dismissal of an employee or a dispute with a business partner. This pocket guide will show you what to do to ensure that in the event of court proceedings your digital information can be easily and quickly accessed.

  • Avoid costly fines Organisations have only a limited amount of time to respond to E-Discovery requests. Failure to meet the deadline could land your organisation with a fine from the court of up to $50,000 per day. The pocket guide tells you some steps your organisation can take to ensure it has as much time as possible to fulfil an E-Discovery request, and thereby avoid costly fines.

  • Identify areas for improvement Even if E-Discovery is an issue your organisation is already addressing, it is still useful to find out where what you currently have in place falls short of best practice. The pocket guide contains a discovery readiness assessment checklist to help IT risk management professionals pinpoint areas that can be improved.

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Table of Contents

  1. ABOUT THE AUTHOR
  2. ACKNOWLEDGEMENTS
  3. ITG POCKET GUIDES
  4. PUBLISHER’S NOTE
  5. CONTENTS
  6. PROLOGUE
  7. CHAPTER 1: WHAT ARE THE FEDERAL RULES OF CIVIL PROCEDURE?
    1. Scope of the FRCP
    2. Why the FRCP were amended
    3. What is ‘ESI’?
  8. CHAPTER 2: AMENDMENTS TO THE FRCP EX PLAINED
  9. CHAPTER 3: ORGANIZATIONAL IMPACTS OF THE AMENDMENTS TO THE FRCP
  10. CHAPTER 4: CONSEQUENCES OF NOT ADDRESSING THE E-DISCOVERY CHALLENGE
  11. CHAPTER 5: IDENTIFYING AND ASSESSING E-DISCOVERY RISKS
    1. Becoming informed
    2. Assessment approach
    3. Common E-Discovery risks
  12. CHAPTER 6: ADDRESSING E-DISCOVERY RELATED RISKS
    1. The E-Discovery lifecycle
    2. Establishing an E-Discovery framework
      1. E-Discovery task force
      2. Early warning system
      3. E-Discovery toolkit
      4. Inventory of information
      5. Records management policies
      6. Information systems usage policies
    3. Preparation for each individual case
      1. Prior to ‘meet and confer’
      2. Production burden
    4. Litigation hold
    5. Preservation
      1. Locating relevant information
      2. Preserving evidence
      3. Good faith destruction
    6. Collection / extraction
    7. Review
      1. E-Discovery review protocol
      2. Inadvertent disclosure
      3. Special masters or court-appointed experts
    8. Production
    9. Closing
    10. Governance and controls
    11. Continuous / ongoing
      1. Rehearsing / testing E-Discovery processes
      2. Staying up-to-date
      3. Incorporating E-Discovery requirements into future projects
  13. CHAPTER 7: TECHNOLOGICAL IMPACTS
    1. Discovery-related challenges with existing technologies
      1. E-mail
      2. Instant messaging
      3. PDAs and smart phones
    2. Commercial E-Discovery products
    3. Foundational systems
  14. CHAPTER 8: OUTSOURCING
    1. Third-party custodians
  15. EPILOGUE
  16. BIBLIOGRAPHY
  17. APPENDIX 1: E-DISCOVERY READINESS ASSESSMENT CHECKLIST
    1. Policy and awareness
    2. Information technology
    3. Roles and responsibilities
    4. Process and capabilities
  18. APPENDIX 2: EVALUATING E-DISCOVERY SOLUTIONS – EVALUATION CHECKLIST
    1. Collection / search
    2. Preservation / automation of ‘litigation holds’
    3. Privilege review and coding
    4. Content extraction and production
  19. APPENDIX 3: IT GOVERNANCE RESOURCES
    1. Pocket Guides
      1. Practical Information Security Pocket Guides
      2. Practical IT Governance Pocket Guides
      3. Practical Governance Pocket Guides
    2. Toolkits
    3. Newsletter