In December of 2006, Congress passed the Federal Rules of Civil Procedure (FRCP). This Act significantly updates the procedures and processes that litigants must follow regarding electronically searchable information that may be used as evidence at trial.
In the intervening months, more than 25 U.S. District Courts have enacted special rules addressing electronic discovery. Beyond that, a handful of Law review articles have been published addressing these issues. Law reviews are relevant because they can be used by courts in framing some of the more legally technical details of the decisions and rulings that courts make.
The new FRCP, like all laws, are subject to modification, interpretation and growth, as courts message and build on (or take down), the provisions of the laws. This article represents a snapshot of how the courts are working with the FRCP for eDiscovery, and how those rulings might impact your jobs as CIOs and IT managers.
The Act takes into consideration the major technical innovations effecting digital files and documents. They reflect the trends that indicate this mass of data will grow by double digits year upon year. From an eDiscovery standpoint, the last few years have been a wake-up call for courts, lawyers and IT, in part due to the major judgments and penalties that companies have paid as they ran afoul of the changing times.
The Rules to Know
In an earlier installment of this series, we reviewed the two major provisions that will most directly effect you, the IT manager. In summary, they were:
Rules 26 & 26(b)2, which describe what is discoverable. Rule 26 assumes that everything in your corporate files that is the subject of a lawsuit, and not privileged communication, is discoverable. While this is a very broad provision, Rule 26(b)2 serves to moderate the scope by suggesting a “reasonably accessible” test—you have to look, but you don’t have to incur a large expense if you can show that you tried in earnest to find the documents.
Rule 37(f) is the “safe harbor” provision, which states if you make a good faith effort to maintain your data in an active records retention policy, you will not be liable to produce the record if it has been deleted in the normal course of business.
For this article, I add two more provisions:
Rules 16(b) & 26(f), the “meet and confer” conference. These rules inform counsel and courts that eDiscovery is an important early factor in the litigation process. Both parties must meet to agree upon the way that discoverable information (and digital data) will be handled between the parties.
Rule 34 governs the methods and “forms of production” that need to be agreed to and used in the exchange of electronically stored information (ESI).
In general, absent a specific request, a party responding to an eDiscovery request should produce the relevant data in the format in which it is ordinarily saved. If it was saved in a proprietary format, and the receiving party has no way of reviewing that data in that format, then it should be delivered in a useable format.