Zero tolerance for zero retention

One year after FRCP laid down e-discovery guidelines, and the courts are clear: hammer out a retention policy posthaste Dec. 1 marked the first anniversary of the new Federal Rules for Civil Procedure. Although it did not codify the rules for e-discovery, FRCP certainly clarified for companies what their e-discovery policies should be. I spoke with Alan Armstrong, vice president of business development at Fortiv

One year after FRCP laid down e-discovery guidelines, and the courts are clear: hammer out a retention policy posthaste

Dec. 1 marked the first anniversary of the new Federal Rules for Civil Procedure. Although it did not codify the rules for e-discovery, FRCP certainly clarified for companies what their e-discovery policies should be.

I spoke with Alan Armstrong, vice president of business development at Fortiva, an e-mail archiving company, about the FRCP milestone and asked him whether we've learned anything new in the past 12 months.

"Effectively, the court is carrying out FRCP to the fullest extent possible. There is no such thing as undiscoverable information," Armstrong responded.

Actually, we know that there were about 105 e-discovery legal opinions issued since Dec. 1, 2006, thanks to Kroll Ontrack, a company that offers computer forensics services.

The breakdown of those cases is fascinating.

Twenty-five percent of the cases -- which covered a variety of issues, including copyright infringement, fraud, and breach of fiduciary duty -- dealt with discovery requests and court motions to compel discovery.

Twenty-four percent addressed the issue of "spoliation."

Michele Lange, director of legal technologies at Kroll, says in these cases there was a court sanction for an act of document or data destruction.

With a nod to Armstrong's point about discoverability under FRCP, only 6 percent of the cases addressed the question of the admissibility of electronic evidence.

Here's a quick summary of a few of the most significant cases heard this year.

In the case of Columbia Pictures Industries v. Justin Bunnell, the suit claimed copyright infringement, and the plaintiff sought user IP addresses along with dates and times of user requests.

The defendant argued that the data was stored temporarily in RAM and therefore did not come under the new FRCP guidelines that say only ESI (electronically stored information) is discoverable.

Guess what?

The court said data held in RAM constitutes ESI.

In Peskoff v. Faber, the suit alleged fraud and breach of contract, and the plaintiff argued that the ESI produced contained "unexplained gaps."

The plaintiff therefore asked for additional discovery of e-mail. The court ruled in favor, stating that "accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible."

The case of Qualcomm Inc. v Broadcom Corp. is especially interesting as far as the court's opinion is concerned.