The Impact of the New FRCP Rules on Your Business

The Impact of the New FR CP
Amendments on Your Business sponsored by An Osterman Research White P aper

Published January 2007 sponsored by SPONSO RED BY
sponsored by Osterman Research, Inc. . P.O. Box 1058 . Black Diamond, Washington 98010-1058 Phone: +1 253 630 5839 . Fax: +1 866 842 3274 . info@ostermanresearch.com . www.ostermanresearch.com The Impact of the New FRCP Amendments on Your Business
Why This White Paper Will be Worth Your Time The newly adopted amendments to the Federal Rules of Civil Procedure (FRCP) will have a major impact on the way that organizations manage electronic data. However, an Osterman Research survey conducted in December 2006 found that more than one-half of organizations do not understand the new rules well enough to understand the impact that they will have on their data retention practices, while only one in five organizations does not anticipate any sort of change in their corporate behavior in response to the changes. Further, another survey found that only seven percent of corporate counsel attorneys rated their companies as prepared for the new amendments, while The newly more than one-half were not even aware that the new adopted 1amendments were to go into effect on December 1, 2006 . amendments to the Federal The next several months will present significant challenges to Rules of Civil organizations of all sizes on several levels: corporate legal Procedure counsel will need to learn what impact the FRCP changes (FRCP) will will have on their organizations, IT managers will wrestle with have a major the potentially significant investments in technology that will impact on the be required to adequately preserve electronic data, and way that senior managers will need to evaluate and improve their organizations corporate governance policies and procedures to meet the manage new requirements. electronic data. This white paper focuses on the new FRCP amendments and the impact that they will have on organizations of all sizes. This document was authored by: . John A. Heer An attorney that focuses on e-discovery in complex civil litigation and environmental matters. Mr. Heer is a respected speaker and author on topics such as electronic discovery and evidence, litigation tactics and environmental law. . Michael D. Osterman Founder and principal of Osterman Research, Inc.
1 Survey conducted by LexisNexis Applied Discovery during the Association of Corporate Counsel 2006 Annual Meeting in October 2006.
© 2007 Osterman Research, Inc. Page 1 The Impact of the New FRCP Amendments on Your Business
What are the Federal Rules of Civil Procedure? The FRCP are a body of rules focused on governing court procedures for managing civil suits in the United States district courts. While the United States Supreme Court is responsible for promulgating the FRCP, the United States Congress must approve these rules and any changes made to them. A number of A number of important and substantive revisions to the FRCP important and went into effect on December 1, 2006. These changes substantive represented several years of debate at various levels and revisions to the will have a significant impact on electronic discovery and FRCP went into the management of electronic data within organizations effect on December 1, that operate in the United States. In a nutshell, the changes 2006. These to the FRCP require organizations to manage their data in changes such a way that this data can be produced in a timely and represented complete manner when necessary, such as during legal several years of discovery proceedings. debate at various levels. New Amendments to the FRCP The amendments to Rules 16, 26, 33, 34, 37, 45 and revisions to Form 35 are aimed at electronically stored information (ESI). The amendments attempt to deal with the important issues presented by ESI: . ESI is normally stored in much greater volume than are hard copy documents. . ESI is dynamic, in many cases modified simply by turning a computer on and off. The changes reflect the reality . ESI can be incomprehensible when separated from the that discovery of systems that created it. email and other ESI is now a routine, ye... [download for more]