Fear mongering over the new Federal Rules of Civil Procedure (FRCP) requirements for electronic discovery has already begun with an article Storage Goes to Law School. As December 1, 2006 implementation date approaches expect the hype to rise. The “buy my widget or go to jail” line is well-nigh irresistible to sales and marketing folks, but way overstates the case. I’ve looked at the rule changes in some depth and they just aren’t that difficult. It is easy to fear the unknown. So let me give you the lay of the land. In less than 3 minutes.

FRCP: flow control for lawyers
The FRCP “govern the conduct of all civil actions brought in Federal district courts”. Federal district court judges don’t like their time wasted, so these rules are designed to ensure that by the time people get to court they are ready to rumble. These rules are binding only on the Federal courts, but many states model their rules on the FRCP, so expect to see these changes reflected in many state rules over time.

Because the Supreme Court says so, that’s why
The FRCP is produced by the federal judiciary as authorized by Congress. The rules process is long and involved with ample time for public comment and several review layers. Finally the Supreme Court approves the change and unless Congress intervenes, the rule becomes binding. It usually takes 2-3 years to change a rule, but the electronic discovery process changes have taken almost 6 years. They took their time and the result is, IMHO, fair and reasonable.

The nitty-gritty
Most of these rules changes are mostly technical (legally-speaking) in nature. Quoting from the uscourts.gov summary

  • Civil Rule 16 (Pretrial Conferences; Scheduling; Management) (establishes process for the parties and court to address early issues pertaining to the disclosure and discovery of electronic information)
  • Civil Rule 26(a) & (f) (General Provisions Governing Discovery; Duty of Disclosure) (requires parties to discuss during the discovery-planning conference issues relating to the disclosure and discovery of electronically stored information)
  • Civil Rule 33 (Interrogatories to Parties) (expressly provides that an answer to an interrogatory involving review of business records should involve a search of electronically stored information)
  • Civil Rule 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) (distinguishes between electronically stored information and “documents”)
  • Civil Rule 37 (Failure to Make Disclosure or Cooperate in Discovery; Sanctions) (creates a “safe harbor” that protects a party from sanctions for failing to provide electronically stored information lost because of the routine operation of the party’s computer system)
  • Civil Rule 45 (Subpoena) (technical amendments that conform to other proposed amendments regarding discovery of electronically stored information)

OK, stop yawning, here’s the good stuff
The drafting committee’s report on the rule changes called out a couple of interesting points.

  • Rule 34 acknowledges that “electronically stored information is explicitly recognized as a category . . . distinct from “documents” and “things.” The courts recognize that computer information differs in three major ways from traditional documents:
    • Volume is often enormous
    • The information is dynamic – easily overwritten, deleted or changed, often without anyone’s specific direction or knowledge (BSOD, anyone?)
    • The information may be incomprehensible apart from the system that created or stored it
  • Rule 37(f) is the IT department’s friend. It offers “limited protection against sanctions . . . for a party’s failure to provide electronically stored information in discovery.” The limits are:
    • The data must be lost in the routine operation of an information system
    • The operation of the system must be in good faith – which may mean modifying IT operations to preserve data that might be needed for pending or reasonably anticipated litigation

The StorageMojo.com take
The new FRCP rules are not, primarily, an IT problem. Your company’s record managers and legal advisors are responsible for figuring out company policy on record retention. IT should state clearly that they are ready and willing to help formulate cost-effective means of supporting discovery requirements, but under no circumstances should IT take responsibility for defining those standards. By this process IT will have the support of the firm’s legal advisors if any expenditures are required.

These policies will have to be documented and IT folks trained on them. You’ll need know that when the VP of sales storms in, demanding that his emails to a competitor be deleted right now! that you are on safe ground refusing until the proper process has been followed.