Survey Shows 94 PerCent of Businesses Are Still Not Fully Prepared for FRCP

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Free online email policy tool helps prepare organizations to meet new legal discovery requirements.

Having a sound records management policy and system in place are the important first steps towards meeting the e-discovery challenge posed by the FRCP amendments. Organizations that have not yet started this process should make it a priority or face leaving themselves open to significant risks.

Three months after changes to the Federal Rules of Civil Procedure (FRCP) went into effect, the vast majority of businesses are still not confident they are prepared to meet the new requirements. According to survey results released today, 94 percent of those people responsible for email policy do not feel their organization is fully prepared to meet FRCP requirements. Even more surprisingly, only 38 percent of those respondents say they are familiar with the changes, which require all companies to know exactly where their electronic documents are stored and to be prepared to make corporate email available to the court in case of a lawsuit.

“We’re seeing companies of all sizes struggle with the challenges of FRCP and eDiscovery. The recent case between AMD and Intel is a great example of how even the most technologically advanced companies are having a hard time enforcing their policies and implementing legal holds for email,” said Eric Goodwin, CEO, Fortiva. “After seeing the results of the survey, we realize there is still a significant need for resources that businesses can use to help meet FRCP – whether that’s help with the policy, or help implementing the policy.”

The survey, which was conducted during the last week of February, found that almost half of the respondents (45.9 percent) have no retention policy for email, an important step in meeting FRCP rules. In addition, only 8.4 percent of respondents have met one of the most critical requirements outlined by the FRCP amendments: putting a litigation hold procedure in place. While 10 percent of respondents have made changes to the policy to meet FRCP, over 20 percent are still in the planning stage, and 36 percent were not sure if changes were planned.

“The challenge of understanding and implementing the new FRCP requirements has caused a great deal of concern among corporate legal counsel, partly because meeting that challenge requires cooperation between different departments – including IT, records management, legal and the business units – to make it happen. These survey results indicate that many businesses are clearly still struggling to meet the requirements,” said Arthur L. Smith, a member of the Dispute Resolution Practice Group at Husch & Eppenberger in St. Louis and an expert on issues relating to electronic discovery. “Having a sound records management policy and system in place are the important first steps towards meeting the e-discovery challenge posed by the FRCP amendments. Organizations that have not yet started this process should make it a priority or face leaving themselves open to significant risks.”

In response to the FRCP changes, Fortiva has made available a new version of Policy Builder by Fortiva, a free online template tool. The tool, which is available through the Fortiva web site at, provides policy templates created by experts including acceptable usage, best practices, security guidelines, retention policies, and sample key words to use when enforcing policy elements. The easy-to-use tool offers secure, password-protected access via a Web browser, allowing users to view and update their customized policy at any time. It also allows one-click creation of a PDF version of the policy for company-wide distribution.

Additional findings from the survey include:

  •     56.7 % of respondents that are responsible for email policy are in IT; while 6.8 percent are in the legal department;
  •     25.4 % of respondents said their organization has responded to an e-discovery request at least once in the past three years, while 24 % didn’t know/weren’t sure;
  •     45.6 % of respondents said their organization does not have an official email retention policy; users keep their email as long as they like;
  •     Only 25.5 % of respondents said that legal counsel directives influenced their retention policy.

Survey Methodology

Survey results are based on 118 respondents that are fully or partially responsible for developing, managing, and/or implementing email policies within North American organizations. The survey, conducted over a 1-week period in February, 2007, polled users of the Policy Builder by Fortiva tool. The survey was conducted by Fortiva, a provider of secure, on demand email archiving.

About Fortiva Inc.

Fortiva is the leading provider of on-demand email archiving solutions for regulatory compliance, legal discovery and mailbox management. The Fortiva Archiving Suite automatically captures and indexes all electronic communications for redundant storage offsite. By outsourcing to Fortiva, customers can enforce a consistent message retention policy without having to worry about managing the storage infrastructure. Fortiva is the only email archiving service provider that guarantees search performance while offering total data privacy in a fully-managed solution.

With offices in Canada and the United States and a global data center presence, Fortiva delivers its customer-driven solutions through a strong network of strategic partnerships as well as a direct sales force. Fortiva is a privately-owned company, with investment from Cargill Ventures, McLean Watson Capital and Ventures West. For more information, visit

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Sarah Grant

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Victoria Badgley

416.366.6666 ext. 383


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