Federal Rules of Civil Procedure

The New Amendments to the Federal Rules of Civil Procedure (FRCP)

The amendments to the Federal Rules of Civil Procedure (FRCP) have a major impact on the way organizations manage electronically stored information (ESI). However, many organizations do not understand the amendments well enough to fully comprehend the impact they will have on their data retention practices.

Furthermore, another survey found only 7% of corporate attorneys rated their companies prepared for the new requirements under the new amendments, while more than one-half were not even aware that new amendments went into effect on December 1, 2006. Corporate legal counsel need to understand the impact the FRCP has on their organizations, IT managers have to wrestle with the potentially significant investments in technology required to adequately preserve electronic data, and senior managers need to evaluate and improve their corporate governance policies and procedures to address the FRCP.

Summary of Rules 26 and 34

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

• Under this rule, a responding party should produce relevant ESI that is not privileged and is reasonably accessible
• A party need not provide ESI that the party identifies as not reasonably accessible because of undue burden or cost. In disputes about accessibility, the Judge will decide
• Nonetheless, the court may decide to order discovery from such sources if the requesting party shows good cause that the ESI cannot be found elsewhere

Rule 34 confirms 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 different forms of production may be appropriate for different types of ESI.

• The rule therefore provides that the requesting party may ask for different forms of production for different types of ESI

Summary or Rule 37

Rule 37 specifies when a party is permitted to dispose of ESI 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 ESI and committee notes may be accessed by clicking on the following links:

ttp://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf

Federal Rules of Civil Procedure from the Cornell Law School:

ttp://www.law.cornell.edu/rules/frcp/

These rules govern the conduct of all civil actions brought in Federal district courts. While they do not yet apply to suits in state courts, 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