The New Federal Rules of Civil Procedure (FRCP)

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 more than one-half were not even aware that the new amendments were to go into effect on December 1, 2006 1 . The next several months will present significant challenges to organizations of all sizes on several levels: corporate legal counsel will need to learn what impact the FRCP changes will have on their organizations, IT managers will wrestle with the potentially significant investments in technology that will be required to adequately preserve electronic data, and senior managers will need to evaluate and improve their corporate governance policies and procedures to meet the new requirements.

Summary of Rules 26 and 34

Rules 26 and 34 define what constitutes electronically stored information and requires early conference between parties during which information systems and data locations must be detailed.

Under this rule, a responding party should produce electronically stored information that is relevant, not privileged and reasonably accessible.
A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible because of undue burden or cost.
Nonetheless the court may decide to order discovery from such sources if the requesting party shows good cause.

Rule 34 confirms that discovery of electronically stored information stands on equal footing with discovery of paper documents.

Rule 34 permits the requesting party to designate the form or forms in which it wants electronically stored information produced.

The rule recognizes that different forms of production may be appropriate for different types of electronically stored information.

The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information.

Summary or Rule 37

Rule 37 specifies when a party is permitted to dispose of electronically stored information by exploiting routine operation of an information system and when a party is under a duty to preserve information because of pending or reasonably anticipated litigation – “Litigation Hold”.

The complete description of rules governing discovery of electronically stored information and committee notes may be accessed by clicking on the following links: http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf

Federal Rules of Civil Procedure from the Cornell Law School: http://www.law.cornell.edu/rules/frcp/

These rules govern the conduct of all civil actions brought in Federal district courts. While they do not apply to suits in state courts yet, the rules of many states have been closely modeled on these provisions and most will adopt the FRCP in the next several months.

Osterman/Mimosa White Paper: The Impact of the New FRCP Amendments on Your Business