Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2013-07-03 18:11:14   Preparations for our eDJ webinar on the Dodd-Frank Act’s impact on IT next Thursday pushed me to dig further into the new CFTC record keeping requirements covering mobile devices, social media and mobile phone calls from the perspective of our guest legal speakers. As analysts, we tend to prioritize the technical, practical and market implications of new requirements over their potential strategic litigation impact. We are lucky enough to have former U.S. Magistrate Ronald Hedges and Pillsbury Winthrop Shaw Pittman’s eDiscovery Partner David Stanton to add their perspective to our webinar discussion. Although the new rules only cover communications directly relating to pre-execution of trades (see rule language below), they will require market participants to invest in capture, retention and retrieval capabilities that are clearly relevant to corporate eDiscovery obligations. This may result in a new wave of burden and accessibility arguments before the bench. Essentially, Dodd-Frank ‘could’ blow the lid off of the BYOD/cloud Pandora’s box. Too many litigants rely on a Don’t-Ask-For-Mine quid pro quo strategy to ignore these new, complicated data sources. When global corporate hedge and pension management exceeds the end-user exception threshold, corporate legal departments may suddenly find that their custodian’s mobile phones, IM and even phone calls migrate to active, accessible sources of ESI that must be preserved and collected. My experience is that discovery trends and expectations follow regulators and the big boys.

CFTC Requirements - click to Enlarge

We have to temper any alarmist tendencies with a reality check. Only 37% of the Dodd-Frank rules have been finalized to date and special interest lobbyists seem to be succeeding in expanding the exemption thresholds. The initial dealer threshold of $100 million in swaps has been increased to $8 BILLION for the next 5 years, severely restricting the companies that would face the strictest real-time reporting requirements. Fundamentally, we don’t know who will be hit with many Dodd-Frank requirements when the dust settles, but we can see that regulators are keenly aware of the importance of new communication channels. Lobbyists cannot make the concept of a ‘transparent corporation’ and shareholder access just disappear with the shadow of the market driven recession hovering over them. CIO’s, compliance officers and IT managers are struggling to understand and get ahead of the new rules. So join us to learn about the impact of Dodd-Frank on information governance and eDiscovery. Corporate and law firm registrants will receive a copy of our eDJ Report covering Dodd-Frank complements of Symantec. Greg Buckles can be reached at Greg@eDJGroupInc for offline comments or questions. His active research topics include mobile device discovery, the discovery impact of the cloud and Microsoft’s 2013 eDiscovery Center. Recent consulting engagements include managing preservation during enterprise migrations, legacy tape eliminations, retention enablement and many more. Join Greg for upcoming webinars or contact him to participate in his focus polls:

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