FRCP and What IT Needs to Know When Planning eDiscovery Systems/Initiatives

What Are the Federal Rules of Civil Procedure (FRCP)?

The FRCP, established in 1938, govern federal court procedures for civil suits in the United States district courts. Put forth by the United Supreme Court pursuant to the Rules Enabling Act, they were then approved by the United States Congress. The Court's modifications to the rules are usually based on recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.

The most recent revision to the FRCP, which took effect in December 2006, included practical changes to discovery rules to make it easier for courts and litigating parties to manage electronic records. These new amendments continue to have major effect on how companies retain, store, and produce ESI (i.e. electronically stored information, a term created by the judiciary) for litigation - especially email, document management and file system data.

The FRCP does not specify or even suggest any particular technologies be used for record archiving or eDiscovery processes, but rather makes clear the obligation to quickly secure, hold and produce all pertinent data for litigation when directed.

Let's take the Rule 26 for example and elaborate:

This rule clarifies a responding party's duty to include ESI in its initial disclosures. It also requires the party to describe the location, format, and the accessibility of all ESI they have in their possession. It reads in part: "A copy of, or a description by category and location of, all documents electronically stored information, and tangible things that are in the possession, custody or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment."

Rule 26(a)(1)

Rule 26(a)(1) specifies that the organization must have a location and high-level inventory of all electronic data ready at the pre-trial conference. This rule removes any maneuvering room around producing instant messages, SMS messages, voicemail, or other forms of electronic data stored in less accessible locations, such as removable storage devices, USB thumb drives, digital camera memory, and so on.

What does it mean for IT?

IT will be called upon to quickly produce this detailed data mapping or inventory. Be proactive! Create the data map or inventory ahead of time and keep it up to date.

There are several other rules that impact how IT rolls out eDiscovery systems, rules such as rule 16(b), rule 34, rule 37(e) and so on.