May 2008

By Browning E. Marean

More than 40 sanctions cases — resulting in millions of dollars in fines — have been decided in one year since revisions to the Federal Rules of Civil Procedure (“FRCP”) took effect. In contrast, only two have been recorded under the Sarbanes-Oxley Act since it was put into place in 2002. The 2006 changes to the FRCP specifically require that companies ensure all potentially relevant electronically stored information (“ESI”) associated with litigation is preserved and protected, with a subset ultimately produced when required. While on the surface this may sound simple, those in the trenches on both sides — legal and IT — have war stories to tell of hard lessons learned. Organizations that do not take a comprehensive approach to managing ESI for discovery may fall prey to fines, sanctions and worse.

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