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Amendments to the Federal Rules of Civil Procedure regarding E-Discovery

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By Benjamin Wright

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Posted: 23 Jan 2007
 

Amendments to the Federal Rules of Civil Procedure regarding E-Discovery: What You Need to Know

FRCP Amendments - December 2006

On April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of "electronically stored information." The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The proposed amendments were transmitted to the Supreme Court in September, 2005, after the Judicial Conference unanimously approved them. The new rules and amendments have now been transmitted to the US Congress and took effect on December 1, 2006. The amendments may be accessed on the U.S. Court's Federal Rulemaking website at: http://www.uscourts.gov/rules/newrules6.html#cv0804.

Executive Summary

Amendments to the Federal Rules of Civil Procedure reflect growing attention focused on electronic records in litigation. When read together with recent case law, the amendments show that enterprises have incentives to keep more complete email archives and to retain those archives for longer periods of time. An enterprise that has destroyed its email records prematurely, or that cannot account for the electronic records it does possess, stands to suffer more in a court today than might have been true some years ago.

This white paper considers the amended rules from the perspective of an enterprise IT manager who is tasked with setting a policy on e-mail retention and destruction before any particular lawsuit is started or anticipated.

Introduction

The rise of electronic records is having a profound effect on business litigation. A standard part of litigation today is the search for, disclosure of and dispute over email and other computer records.

Electronic records have become so important that the rules of litigation in US federal courts have officially amended so as to give judges and litigants more guidance on now to cope with the records. On December 1, 2006, amended parts of the Federal Rules of Civil Procedure (FRCP) came into effect with respect to electronic records and their discovery in litigation (cf. www.uscourts.gov/rules/EDiscovery_w_Notes.pdf. For background on these amended rules, see Kenneth J. Withers, "Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure," 4 Nw. J. of Tech. & Intell. Prop. 171 (Spring 2006) http://www.law.northwestern.edu/journals/njtip/v4/n2/3). These amended rules, together with recent case law, give enterprises incentive to expend more effort retaining their e-mail and organizing e-mail archives so they can easily be searched.

In a practical sense, the amended rules are not all that new. They do not depart significantly from practices that have emerged informally or by local rules of particular trial courts. But the decision formally to amend the FRCP signifies how much conflict electronic records are causing in the courtroom today and implies that business enterprises should progressively grow better prepared for the day when they must account for their computer records in litigation.

Although the amended rules apply, strictly speaking, only to lawsuits in US federal courts, they bespeak trends equally present in state and foreign courts. The rules affect all kinds of enterprises, regardless of industry, and whether private sector or public sector.

Legal Discovery

A central feature of a typical lawsuit is the phase known as "Discovery." Under discovery each party is entitled to receive from the other copies of or access to most all the records the second party possesses that are relevant to the subject of the lawsuit. Discovery is a contentious topic because it can be tedious and expensive for a party such as a large corporation to sift through all its archives in search of those that must be disclosed. Furthermore, the timing and logistics of disclosure can have large strategic implications as a lawsuit unfolds.

Through the amendments to the FRCP, the discovery process is being revamped formally to shine more light on electronic records. Implicit in the amendments is the risk that the holder of electronic records can, when answering a discovery request, make a mistake and open itself to sanctions. Examples of mistakes during litigation would be to misrepresent the existence or status of records or to destroy some that should have been preserved.

To be continued -

About the Author

Benjamin Wright is a Dallas-based attorney and author of numerous publications on technology law, the most recent being a series of educational videos and study guides on best practices for managing email records. benjaminwright.us


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