Federal Rules
FRCP Change Highlights
The new Federal Rules of Civil Procedure (FRCP) went into effect on December 1, 2006, the updated rules comprehensively address electronic data discovery. The following list highlights some of the major changes.
- Rule 16(b) "Scheduling and Planning", Rule 26(a) "Required Disclosures; Methods to Discover Additional Matter", Rule 26(f) "Conference of Parties; Planning for Discovery" and Form 35 "Report of Parties' Planning Meeting" include changes that are part of the meet and confer pre-trial conference requirements. These changes require parties to discuss electronic discovery issues early in a case as part of the initial Rule 26(f) conference. The agreements reached between counsels should be reported to the court at the Rule 16 conference and reflected in the court's scheduling order. Some subjects to be discussed include the scope of relevant documents, the preservation of documents, the form of production of the documents and "claw back" or "quick peak" arrangements.
- Rule 26(b)(2) "Discovery Scope and Limits: Limitations" reflects changes with regard to information that is not reasonably accessible. A responding party need not produce ESI that is reasonably identified as inaccessible because of undue burden of cost. On a motion to compel the responding party has the burden to show the sources are not reasonably accessible and the court may still order production of the ESI for good cause shown, with conditions, including the potential cost-shifting of the discovery expenses to the requesting party.
- Rule 26(b)(5) "Claims of Privilege or Protection of Trial-Preparation Materials" provides a procedure for either return, sequestering or destruction of inadvertently produced privilege or work product documents.
- Rule 34 "Production of Documents, Electronically Stored Information and Things" separates Documents from Electronically Stored Information (ESI) and allows the requesting party to specify the form of production. The responding party can object and must specify the form it intends to use. Also the default form of production was changed to a choice between "ordinarily maintained" format (native file) or "reasonably usable" format (TIFF).
- Rule 37 "Failure to Make Disclosures or Cooperate in Discovery" provides a limited "safe harbor" for inadvertent loss of electronically stored information if the loss occurred due to routine, good faith operation of an electronic information system.
- The following links are for publications in (.PDF) format that are available for free download at the U.S. Courts website.
The Complete Federal Rules of Civil Procedure with Forms
eDiscovery Amendments and Committee Notes
Managing Discovery of Electronic Information: A Pocket Guide for Judges
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