Directory:Federal Rules of Civil Procedure (FRCP)

Introducing the Rules of Civil Procedure (FRCP)

The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits (download the amendments to the FRCP with notes here). Although federal courts are required to apply the substantive law of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of procedure. States make their own rules that apply in their own courts, but most states have adopted rules that are based on the FRCP. The rules, established in 1938, replaced the earlier Field Code and common law pleadings. They have undergone significant revisions in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, and 2000.

A new set of revisions to the FRCP electronic discovery took effect in December 2006, with practical changes in e-discovery rules that will make it easier for courts and litigating parties to manage electronic records and digital evidence. The Rules are designed to encourage uniformity and provide a structure for earlier and more predictable agreements, arguments and motion practice surrounding electronic discovery and discovery law. Further, the Rules span several electronic discovery phases, from legal hold to production.

Key changes to the FRCP include:

- Rule 16 (b) — parties must prepare for a schedule conference to address its plans for e–discovery and document production within 120 days of a company filing a lawsuit. - Rule 26 (f) — parties must sit down together at least 21 days before holding the scheduling conference to discuss and agree on some form of procedure or protocol to govern the e–discovery process (within 99 days of a lawsuit being served). - Rule 16 (b) (5) — will make it possible for the court include the e–discovery agreement that results from the scheduling conference in the scheduling order. - Rule 26 (a) — expands the definition of e–discovery material from “documents” or “data compilations”to include all electronically stored information (ESI). You can now discover from e–mail (electronic mail or email) and word documents to voice–mail, instant messaging, back–up tapes, database files and more. These are all now considered to be forms of electronic evidence or digital evidence. - Rule 26 (b) (2) — includes provisions for second–tier discovery and cost–shifting arguments. Requesting parties can’t assume that a company should produce backup tapes. Responding party can show that e–discovery request would cause an undue burden. In this case, the requesting party must show good cause for the request. - Rule 26 (b) (5) — permits parties to retrieve inadvertently disclosed, privileged information under “clawback” agreements. - Rule 34 (b) —allows party requesting electronically stored information to specify the form to be used in production. This can range from native file formats to proprietary. - Rule 37 (f) — disallow (with judicial discretion) sanctions when a company loses ESI due to routine, good faith operation of an electronic information system.

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