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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 important and substantive revisions to the FRCP went into effect on December 1, 2006. These changes represented several years of debate at various levels and will have a significant impact on electronic discovery and the management of electronic data within organizations that operate in the United States. In a nutshell, the changes to the FRCP require organizations to manage their data in such a way that this data can be produced in a timely and complete manner when necessary, such as during legal discovery proceedings.
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.
- ESI can be incomprehensible when separated from the systems that created it.
- ESI contains non-apparent information, or metadata, that describes the context of the information and provides other useful and important information.
The changes reflect the reality that discovery of email and other ESI is now a routine, yet critical, aspect of every litigated case. First, the amendments treat ESI differently.
Second, they require early discussion of and attention to electronic discovery. Third, they address inadvertent production of privileged or protected materials. Fourth, they encourage a two-tiered approach to discovery – deal with reasonably accessible information and then later with inaccessible data. Finally, they provide a safe harbor from sanctions by imposing a good faith requirement.
Who is Most Impacted by the Changes to the FRCP?
Unlike many data retention requirements in specific industries, such as those imposed upon broker-dealers by the Securities and Exchange Commission (SEC) and the National Association of Securities Dealers (NASD), the FRCP apply to virtually all organizations in all industries. If an organization can have a civil lawsuit filed against it, then the FRCP should figure prominently in that organization’s data management strategy.
Obviously, all cases brought after December 1, 2006 will be subject to the new FRCP amendments. However, the Supreme Court has determined that cases filed prior to this date could be subject to the FRCP if a court determines that undue delay or burden to the parties involved2 will not be imposed by adherence to the new rules.
Key Rules Within the FRCP
Civil Rule 16
Pretrial Conferences; Scheduling; Management
The amendments establish a process for the parties and court to address early issues pertaining to the disclosure and discovery of electronic information. They are designed to alert the court and litigants to the possible need to address handling of ESI early in litigation if such discovery is expected to occur. Rule 16(b) is amended to invite the court to address disclosure or discovery of ESI in the Rule 16 scheduling order and gives the court discretion to enter an order adopting any agreements the parties reach for asserting claims of privilege or protection after inadvertent production in discovery.
Civil Rule 26
General Provisions Governing Discovery; Duty of Disclosure
- Rule 26(a)(1)
The amendment clarifies a party’s duty to include ESI in its initial disclosures by substituting the word “ESI” for “data compilations.”
- Rule 26(b)(2)
The amendment clarifies the obligations of a responding party to provide discovery of ESI that is not reasonably accessible (deleted information, information kept on some backup tape systems, and legacy data from systems no longer in use). The amendment requires the responding party to identify the sources of potentially responsive information that it has not searched or produced because of the costs and burdens of accessing the information. If the requesting party moves for production of such information, the responding party has the burden of showing the information is not reasonably accessible.
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