What are the FRCP and Why Do I Care?

Posted by Gregg Mayer on Friday, February 8th, 2008   

Generally, CIOs don’t have to know much about the Federal Rules of Civil Procedure. That’s why you pay your lawyer. Your lawyer spent three years in law school and years of practice trying to master the rules.

However, with changes made to the rules in 2006 pertaining to electronically stored information (“ESI”), you will want to be on top of what one of the amended rules provides because odds are your lawyer will be rushing to you to ask: “Now, where is the ESI and how much do you have?”

There are more than 80-something Federal Rules of Civil Procedure. These rules govern the procedural dos and don’ts of courtroom activity. Judges and the lawyers before them are bound to follow these rules in federal court.

One rule you should be familiar with is Rule 26, a general rule governing “discovery” in court proceedings. Discovery is a process for both sides in litigation to learn what the other side has.

Effective Dec. 1, 2006, several parts of this rule were amended to include “electronically stored information” as part of the discovery process. Early in the litigation, your lawyers will want to know how many archived databases you have, what is on them, how much is on them, and how they can be accessed. This information is critical to discovery. Most likely, your lawyer won’t know much about how your ESI is archived unless you have already had a face-to-face to talk about it. You should do that. The more you know, the more your lawyer can know, and the better the process will run.

Why is this important? Not knowing – and, consequently, failing to disclose to the other party – a compete and accurate record of your ESI may prove costly down the road. First, discovery proceeds quickly once litigation begins. Within as little as a few weeks you may have to turn over ESI.

Moreover, courts may sanction parties for not complying with discovery. Sanctions may include excluding evidence (no matter how helpful the evidence may be to you), or even giving the jury an adverse jury instruction (that is, an instruction that whatever you did not produce should be considered in the worst possible light against you). Failing to comply with discovery is the quickest way to lose a lawsuit.

To give you the larger picture, here is a list of the rules amended to include ESI, including the multiple changes made in Rule 26:

• Rule 16(b) –The pre-trial scheduling order may address electronically stored information. The lawyers can talk about how much ESI each side has. In all likelihood, your lawyers will rely on you to tell them what ESI you have.
• Rule 26(a) – ESI is included in initial disclosures to the other party. Just like other basic information that parties generally must disclose to the other side (names of people with relevant information, lists of documents that may be relevant), ESI is now part of those disclosures.
• Rule 26(b)(2) – Addresses what happens if ESI is inaccessible, including a court’s authority to require disclosure upon a showing of good cause.
• Rule 26(f) – Parties must meet and confer on e-Discovery issues before pretrial scheduling conference.
• Rule 33(d) – ESI may be referenced as a type of business record to answer interrogatories (written questions to the other side).
• Rule 34 – Discusses what form to produce ESI and notes requesting party may specify how it wants the ESI.
• Rule 37 – A “safe harbor” provision that provides that a party will not be sanctioned for the inadvertent loss of ESI based on the routine, good faith operation of the IT system (*note, it is still unclear the reach of this so-called “safe harbor” and courts still retain an inherent authority to sanction).
• Rule 45 – ESI is subject to subpoenas.

Keep in mind, the case law is developing rapidly to interpret these rules. Check back with this blog to learn more about the individual rules and how they can impact company operations.

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