FRCP – the Litigator's Bible

As the volume of electronically stored information has increased, the number of litigations, lawsuits, and corporate investigations has also doubled. This has made eDiscovery a frequently used term in corporate circles. Though eDiscovery has become an inevitable part of corporate life, it has been found that even seasoned litigators are still groping in the dark when it comes to getting the eDiscovery process on track.

Federal Rules of Civil Procedure (FRCP)

FRCP stands for Federal Rules of Civil Procedure and includes all the rules and guidelines for civil suit court proceedings. It is definitely the litigator’s bible since a thorough understanding of FRCP rules can go a long way in making the e Discovery tools process easy to manage. Many times litigators must incur the court’s wrath because of their ignorance of FRCP rules.Promulgated by the United States Supreme Court in accordance with the Rules Enabling Act, the FRCP was approved by the United States Congress before it was put into operation. Established in 1938, these rules replaced the earlier Field Code and common law pleadings. Based on the suggestions made by the federal judiciary’s internal policy-making body, the Judicial Conference of the United States, amendments to the FRCP were made from time to time. The FRCP was amended in the years 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, 2006 and was in 2006 that changes were made to discovery rules to make the management of electronic evidences and digital records easy and effortless for courts and litigators alike.

In 2007, these laws were rewritten in an attempt to make the changes clear and comprehensible to all. 2006 Discovery AmendmentsAs technology has advanced, it has become necessary to amend the FRCP discovery rules. The 2006 eDiscovery amendments covered five areas, and they are:

1. Defining discoverable materials Per this amendment, electronically stored information was added to the list of discoverable materials.

2. Addressing Electronic Discovery problems early Guidelines were provided on ways to tackle eDiscovery issues early in the process. The purpose of this amendment was to reduce discovery costs considerably.

3. Managing electronic data that is not accessible This amendment includes provisions for ESI that cannot be retrieved. In such circumstances, the requesting party must provide good reason for the court pass an order in their favor.

4. Tackling issues of privilege This amendment provides an opportunity for the responding party to retrieve privileged data that was accidentally passed on to the requesting party.5. Waiving off sanctions imposed for the loss of electronically stored information Per this amendment, sanctions that were imposed for non-compliance are waived if the company is able to prove beyond a doubt that loss of ESI has been due to the routine, good faith operation of an electronic information system.

2010 Discovery AmendmentsA few amendments were made to FRCP in 2010, which became effective December

1. Though clarity regarding these amendments will be more evident in days to come, let’s look at some of the key changes:

??? With this amendment, all days, including intermediate weekends and holidays, were included when counting deadlines.

??? New rules have been created with regard to juror polling and relief pending appeal.

??? Rule 13 (f), which allows a party to add an omitted counterclaim to a pleadin,g has been annulled since this issue has been already addressed in Rule every litigator, seasoned or not, the process of eDiscovery is like a maze, and it is easy to get lost. Hence, amendments to FRCP electronic discovery rules were made to make digital investigations less complicated.