Few prepared to comply with 'e-discovery' rules

In May's Industry Focus, Senior Editor Meg Fletcher wrote an interesting piece about the impending impact of new federal "e-discovery" rules on insurance industry companies.

The Federal Rules of Civil Procedure, amended in December, require parties to federal court civil cases to meet early in the process to discuss issues related to preserving and producing e-mails and other electronically stored information relevant to the case.

For insurance industry companies, as for other businesses, complying with the requirements means a significant evaluation of existing data management policies, with an eye toward ensuring that stored data is available and searchable, and, possibly more significantly, making certain that data management policies are in place and being complied with across the organization.

Obviously, for insurance industry companies, the issue is multipronged. The industry collects and saves considerable information, engages in extensive communication--more and more of it by e-mail--among insurers and reinsurers, clients and intermediaries--and is a frequent target of litigation, a challenging trifecta in the face of the new e-discovery rules.

A recent survey, though, suggests the new rules may present an even bigger issue to insurance industry and other businesses, as few were prepared for the new requirements. There is, it seems, a lot of work to be done in many companies to come into compliance with the new requirements.

The survey, conducted earlier this year by Toronto-based Fortiva Inc., showed that 94% of those responsible for their companies' e-mail policy felt their companies were not fully prepared to meet the new requirements.

More disturbing, perhaps, was that three months after the rules took effect, only 38% of respondents said they were familiar with the changes.

The survey, conducted in late February, found that nearly half of respondents had no e-mail retention policy, an essential element of compliance with the new requirements. What's more surprising, only 8.4% of those responding said their company had a litigation hold requirement in place for electronically stored information potentially relevant to litigation.

Of the companies surveyed, 10% indicated they had made changes in company policy to meet the new FRCP requirements, with 20% saying they were in the planning stage and 36% of respondents saying they weren't sure whether changes were planned.

The Fortiva survey also found that 56.7% of respondents said the responsibility for company e-mail policy is in the information technology department, while 6.8% said the responsibility resides in their organization's legal department.

In addition, 25.4% said their company had responded to an e-discovery request at least once in the past year, while 24% said they didn't know or weren't sure.

Regarding e-mail retention policies, 45.6% of those responding to the survey said their organization does not have an official e-mail retention policy, with users keeping e-mail as long as they like. And only 25.5% of those responding said that guidance from company legal counsel shapes their organization's e-mail retention policy.

Fortiva provides on-demand e-mail archiving solutions for regulatory compliance, legal discovery and mailbox management. Results of the survey, conducted among users of Fortiva's Policy Builder tool, were based on 118 respondents with responsibility for developing, managing and/or implementing e-mail policies within their organizations.