FRCP Compliance: Rule 26
Rule 26 is one of the many rules that govern the discovery process. In order to achieve FRCP compliance, understanding of Rule 26 and it’s role is important. In summary, Rule 26 covers the parties’ duty to disclose and other general provisions governing discovery. It defines what is considered discoverable Electronically Stored Information (ESI). The term eDiscovery is often used to search and find ESI during this process.
Rule 26, Duty to Disclose; General Provisions Governing Discovery, can be found in its entirety at the Cornell University Law School website. There’s a lot of material, so here are some big points from the Rule:
- The Initial Disclosures section has time-sensitive information in it. It puts exact numbers of days on certain processes. It’s important to have a solid understanding of how long you may have for an stage of the discovery process so you don’t run out of time.
- It’s also important to note that changes were proposed in April 2005 and went into effect on December 1, 2006.
- Within the Discovery Score and Limits section, there are specific limitations on electronically stored information listed. The wording here is very specific on what may happen if information is not reasonably accessible because of undue burden or cost.
- And the Rule also specifies an order, a process. The Timing and Sequence of Discovery section includes the detail that “discovery by one party does not require any other party to delay its discovery.”
What can you take from this? Rule 26 is complex, and it’s vital to get counsel that completely understands its nuances and guidelines. One important note: failure to comply with the discovery process is subject to sanctions. These can be severe, so it’s vital to have a system in place to help the discovery process as well as completely comply with requests for information during the discovery process.
Amendments to FRCP in 2006 Prompt E-Discovery’s High-Growth Pace
A recent report from world-renown research analyst firm Gartner, forecasts the e-Discovery market to surpass $1.2 billion. This will be a (huge!) 23% increase from 2009.
One couldn’t deny the importance of the e-Discovery process, but seeing an actual forecast is encouraging. As the world shifts to cloud computing and putting everything in electronic form, the process of finding these documents in pending litigation has become that much more important.
Tom Eid, a research vice president at Gartner attributes amendments to the FRCP as a catalyst for growth:
“The December 2006 amendments to the Federal Rules of Civil Procedures (FRCP) in the US regarding the discovery of electronically stored information (ESI) and passing of subsequent similar statues in other countries, has really spurred market interest in e-discovery.”
This really shows that attention to FRCP compliance is absolutely necessary for all companies. No matter the industry, adherence to the act’s regulations is a smart idea. Also, proactively archiving messages and having a system of place where ESI (electronically stored information) can easily be filtered can save hundreds of thousands of dollars if served with an audit.
FRCP Rules & California’s New E-Discovery Rules Compared
The state of California has its own set rules for e-Discovery that does share key similarities to the Federal Rules of Civil Procedure, but also share some differences. A wonderfully brief and concise blog posting from Rob Robinson on his InfoGovernance Engagement Area blog defines each of these.
I encourage blog readers to visit his blog directly to help boost visits for his post, but for the sake of convenience, the information is found below:
The Key Similarities Between The California and Federal Rules:
- Broad Definitions of ESI
- Inspection, Copying, and Sampling of ESI
- Specification of Form of ESI Production and Objection Thereto
- Sanctions for Failures to Produce, and Safe Harbors for Data Lost Due To Routine Good Faith System Operations
- Return of Inadvertently Produced Privileged ESI (But No FRE 502 Equivalent)
- EDD Applies to Third Party Subpoenas
The Key Differences Between The California and Federal Rules:
Timing of Discovery and Early Meeting E-Discovery Discussions
- Both sets of rules mandate early meetings of counsel regarding e-discovery issues.
- California allows discovery before early discussion.
Dealing with Requests for ESI that is Allegedly Not Reasonably Accessible
- California requires responses containing detailed objections as to accessibility; failure to object is a waiver of the accessibility argument.
- Federal rules do not on their face require this degree of specificity.
To read California's bill, click this link for a .pdf of the law.
Once again, big thanks to the panelists responsible for this information, Stanley M. Gibson, Esq. and Dan P. Sedor, Jeffer, Esq. each of Jeffer Mangels Butler & Marmaro LLP. As well as to Rob Robinson for sharing on his blog.
Producing Data in a Timely and Complete Manner for FRCP Compliance
FRCP Rule 34 is vital to understand for ensured FRCP compliance. This specific rule defines procedures for the production of documents, which includes electronically stored information (ESI). What does the rule define as ESI?
- Writings;
- Drawings;
- Graphs;
- Charts;
- Photographs;
- Sound Recordings;
- Images;
- And other data or data compilations.
Included in the contents of the request is that it "may specify the form or forms in which electronically stored information is to be produced." For that request, there are different types of responses and objections that can be made. The time of response dictates that the party to whom the request is directed must respond in writing within 30 days after being served. In addition, if the requesting party did not specify a form of ESI in which the data must be presented, the party must state the form or firms it intends to use.
If not specified, the form or forms of data must be produced in a format that is ordinarily maintained or in a reasonably usable state.
Fortunately, a party does not need to produce the same ESI in more than one form.
This was a quick summary and if pending legislation is in your immediate future, it’s advised to obtain legal counsel. With that said, a proper email archiving set-up is essential to complying with any request that may come from the Federal Rules of Civil Procedure. Rather than reactively responding to any kind of audit or legal request, it’s important to know that by utilizing a system that captures emails, instant messages and more and being proactive can help lower the cost long-term.
Backup Tapes Are Not The Best Solution For FRCP Compliance
The problem with backup tapes isn't actually storing the data, it is producing relevant messages efficiently when requested by legal counsel for FRCP compliance. The task of going through a backup tape and to find specific messages is difficult and time-consuming.
One of the key aspects of FRCP compliance is being able to produce relevant ESI efficiently.
Therefore, it's important to include an archiving solution into your company’s email retention policy.
In addition, you can choose to work with a hosted email archiving solution, which means you wouldn't have to worry about storage of your backup tapes or maintenance.
Do the research, find an email archiving company, and ask them how using their services would improve over using backup tapes.
FRCP Compliance: Know The Basics
The Federal Rules of Civil Procedure (FRCP) were established in 1938 and underwent significant revisions in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000 and 2006. When it comes to email archiving and e-discovery, the revision that took effect in December 2006 is important to know and understand.
Fundamentally, the revision required organizations to manage their electronically stored information (ESI). The ESI needs to be able to be produced in a timely and complete manner when requested, such as during legal proceedings.
Producing documentation for legal proceedings has shifted recently. While email used to be rarely requested years ago, it’s become commonplace today. And with that said, the outdated technique of using back-up tapes to store email communications makes the searching of specific communication incredibly costly.
For FRCP compliance, it is important to be able to tell what you have, how exactly it is classified and where you can find it. Don’t be stuck in a reactive mode – be proactive and find a system that can help your company save money and time when an e-discovery request comes in.
Need More Info?
Welcome
Links
- Compliant Archiving
- Email Archiving
- Email Encryption Laws
- Email Regulations
- Social Network Compliance
Advertisement