The FRCP and eDiscovery: 5 Common Questions Legal Teams Have [Answered]

In June 1935, the United States Supreme Court established a rules advisory committee. The goal: to establish the first draft of the Federal Rules of Civil Procedure. In 1938, those rules were first published. Since then, advisory committees continuously study the Rules. These Rule Committees can then recommend changes through a Standing Committee on Rules of Practice and Procedure.

The Federal Rules of Civil Procedure (FRCP) have seen many amendments since then, and continue to be amended to this day. The FRCP govern how civil cases are conducted by federal district courts. Anything that pertains to the goings-on in a civil procedure is determined by these rules. State governments are allowed to have their own rules in place, but most (35 out of 50) have rules in line with or based on the FRCP.

As such, the FRCP have a massive impact on the workload of legal teams. In this article, I’ll provide some answers to the most common questions legal teams may have on the subject of the Federal Rules of Civil Procedure.

Contents

What is the point of the FRCP?
Which Rules are important when it comes to eDiscovery?
How and why are the FRCP amended?  
What is the potential impact of an amendment? 
How will future amendments impact eDiscovery?
Conclusion

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What is the point of the FRCP?

The original goal and purpose is stated in Rule 1: “to secure the just, speedy, and inexpensive determination of every action and proceeding.” That seems straightforward enough, but in the early 20th century, the rule was deemed to need amendment. A US Courts survey report from 2008 states: “Every day, corporate and defense counsel must confront the legal fact that (...) the Rules are falling well short of [FRCP Rule 1] goal. The reality is that the high transaction cost of litigation (...) threaten to exceed the amount at issue in all but the largest cases.”

In 2015, as part of a larger, impactful set of amendments discussed extensively here, rule 1 was amended. The change included language that emphasized cooperation between plaintiff and defendant. This requires both plaintiff and defendant to work towards a resolution. It states: "Just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.”  

Rule 1 now reads: “These rules govern the procedure in which all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Which Rules are important when it comes to eDiscovery?

Two out of 76 Rules are especially relevant when it comes to eDiscovery: Rules 26 and 37. In December 2015, these rules were amended significantly. For an in-depth discussion of those amendments, read my breakdown here.

Rule 26 contains general provisions that govern discovery of physical and electronic information. Rule 26(b) defines the scope of what is discoverable. It states: “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”

Rule 37 describes the sanctions, or penalties, that apply if a party doesn’t fully cooperate in discovery. Rule 37 states that a party can file a motion to compel discovery if the opposing side is uncooperative. If either party “fails to participate in good faith in developing” a discovery plan under Rule 26(f), Rule 37(f) allows the court to assess “reasonable expenses, including attorney’s fees,” that result from that noncooperation.

Rule 37(e) sets out the sanctions that apply specifically to a failure to preserve electronically stored information (ESI). This loss of evidence is called spoliation. When a court finds that information was lost with an intent to deprive, it can apply serious sanctions. These sanctions can go as far as dismissal of the case or order default judgment.

How and why are the FRCP amended?

In the introduction, the advisory committee came up. After drafting the Rules, the advisory committee's purpose changed. It became the means through which amendments were suggested to the Supreme Court. Committee membership is appointed by the Chief Justice. Committee members are not paid for their service, and can serve no longer than six years. As to who can be appointed, Rules Committees members can have a wide range of backgrounds. They can be federal judges, practicing lawyers, law professors, state chief justices, and high-level officials from the Department of Justice and federal public defender organizations. For anyone curious, the current Rules Committee members can be found here.

If the Rule Committee finds a rule in need of amending, it recommends an amendment to the Supreme Court, which can then amend the rules. Whenever a rule is changed, the Rule Committee will also provide a note on what’s changed or new. These are easily found online. For example, Rule 26 which has been amended 14 times since 1937. Rule 26 deals with Disclosure and Discovery. It is no surprise that amendments have been extensive since 1937, to allow the rules to deal with the advent of eDiscovery, for instance. The notes on Rule 26 offer insight into the Rule Committee's motivations and considerations on the changes made.

What is the potential impact of an amendment?

Rules change for a wide range of reasons, typically seeking to streamline, speed up or simplify Civil Procedure. Sometimes, the legal profession can call for change as well. A good example is found in Rule 37, specifically 37(e), the Duty to Preserve. In 2006, the Rule Committee introduced language that outlined how common-law tradition of preserving evidence should work for ESI. The rules as they were set however, saw courts come down hard on cases where ESI was lost. By nature, ESI is notoriously easy to lose track of in large quantities. As such, ESI gets lost all the time, often by accident. This made legal practitioners incredibly nervous - harsh sanctions could be imposed for relatively easy to make mistakes.

As a consequence, the next Rules Committee sought to amend Rule 37(e). The goal was two-fold: to return some power to the courts themselves by not forcing their hand through the rules, and to reduce the undue burden that many legal professionals felt with regards to the duty to preserve. The result can be seen in the 2015 amendment, of which the American Bar Association has a summary here. They conclude: “The preservation duty imposed by Rule 37(e) and its related threat of spoliation sanctions encourage early cooperation with opposing counsel to define the scope of discovery for the case. If parties can do so (...) they can greatly reduce the risk that the other side will claim spoliation of ESI so long as they are taking other reasonable steps to preserve ESI.”

This rule change appears to have the desired effect, as in recent years have dropped dramatically. Though there remains room for improvement.

How will future amendments impact eDiscovery?

It is impossible to tell exactly what the Rules Committee will do next. In past amendments, the focus has clearly been to reduce the drag on proceedings caused by the recent explosion in potential evidence. This growth of potentially relevant information has been a concern for Rules Committees since 1983. This is well before the advent of eDiscovery and widespread ESI. That concern has only grown, with recent moves being made to reduce interparty animosity and the risk of undue burden placed on either side. Future developments figure to follow a similar vein of thinking.

That isn’t to say the next amendments will make life easier for litigants. As part of the 2015 amendments, the deadlines for certain meetings and disclosures were tightened up, forcing both parties to go through the same amount of data in less time. Future amendments may continue this trend of enforcing speed in an attempt to fulfill the ‘timely’ aspect of Rule 1.

Conclusion

As I noted in my initial writeup on the 2015 amendments, speed is of the essence in the modern FRCP. To meet the requirements of the modern rules, a lot is asked of Legal professionals. They must be ready to go through large and growing amounts of data to find relevant information quickly. The only reasonable way to do this is to bring in eDiscovery tools. Using manpower to make up the difference is prohibitively expensive and leaves a lot of room for error.

Modern eDiscovery tools (such as ours) use AI-powered machine learning techniques to quickly determine what potentially relevant information exists in the mountains of data businesses generate. This allows legal professionals to significantly reduce the amount of data they have to review manually. With less data to review, the risk of missing important information is reduced and deadlines won’t be missed. To find out more, don’t hesitate to reach out.