Introduction to 2006 Amendments to the FRCP
- Reducing discovery costs
- Enhancing the potential of discovery
- Improving the consistency of the practice
- Providing a more defined role for the judiciary in case management
The following are the key changes made to the FRCP:
1. Definition of the term “electronically stored information” – Rule 26 (a)
The term “electronically stored information” was introduced in order to refer to information and data that can be stored electronically, including email, word processing documents, instant messaging histories, digital photographs, backups, printouts, ATM logs, spreadsheets, databases, internet browser histories, digital video and audio files. This term was defined in such a way that it not only covered existing computer-based information but also took into account future technological advancements.
2. Attending to eDiscovery problems early – Rules 16 (b), 26 (f), and 34 (b)
With the aim of reducing electronic discovery costs and preventing discovery disputes, it has been made mandatory for both parties to include ESI in the list of topics to be discussed during meet and confer sessions. Whether the parties reach an agreement or not, a report of the session must be submitted to the court for approval. In the case of a disagreement, the court is directed to take an active role and enforce a proper discovery plan.
2.The other issue that has been dealt with is that of formatting. Per rule 34 (b), the requesting party can decide on the format in which the ESI should be produced. In the absence of any such request from the requesting party, the responding party can produce ESI either in the format it has been maintained or in a format that is usable.
3. Managing electronic data that is not accessible – Rule 26 (b) (2)
According to this rule, a distinction has been made between accessible and inaccessible ESI. There is no binding on the responding party to provide ESI to the requesting party if the responding party has legitimate justification that it causes an undue burden in terms of cost, volume or time. However, the requesting party can compel the court to pass an order in its favor if and only if the requesting party can provide a good cause for the request.
4. Waiving of sanctions imposed for the loss of electronically stored information – 37 (f)
Per this rule, sanctions would not be imposed on parties failing to produce ESI due to routine, good faith operation of an electronic evidence discovery system. However, the rule also specifies that it doesn’t come to the rescue of those companies which fail to preserve the information on the pretext of routine operation of an information system even though it had the means to protect ESI.
5. Tackling privilege issues – Rule 26 (b) (5)
The issue of electronic disclosure of privilege data to the requesting party is addressed in this rule. On disclosure of privileged information, the responding party is granted an opportunity to retrieve the information with this rule. They just need to inform the requesting party that privileged information has been accidentally produced and request that they not use it. On receiving this notice, the requesting party is required to return, sequester, or destroy the requested information and its copies. However, the requesting party can move the court for a hearing in this matter. At the same time, the responding party is also required to protect the information until the issue is resolved.
The 2006 amendments to the FRCP were able to bring clarity to the eDiscovery process, which was until then an unknown realm to most litigators. However, unless and until litigators fully understand the ins and outs of FRCP electronic discovery rules, it will continue to be a mystery.
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