The Federal Rules of Civil Procedure: What’s All This About?

The government amended the FRCP in December 2006 to expedite and systemize the discovery process as it relates to electronically stored information (ESI). The process is e-discovery, a topic that has the legal field abuzz these days.

Essentially, the amendments require organizations that could be involved in federal litigation to prepare, preserve and present data and documents – both digital and paper – requested during the litigation process. An organization that cannot or fails to present the data faces strict sanctions – including hefty fines – from the court.

If litigation is reasonably anticipated, and even before then, organizations have the duty to preserve electronic data that could be used as evidence. Time is of the essence, because the discovery timelines implemented by the FRCP are stringent and unyielding.

States make their own rules but many, if not most, have adopted laws similar to the FRCP. In other words, the FRCP amendments apply to virtually every organization.

According to the FRCP, once a lawsuit is filed and before a discovery request is made, opposing sides must be provided the contact information of individuals who possess pertinent ESI and other data. Ninety-nine days after the lawsuit is filed, both parties must meet and discuss the format and timing of production.

Within 120 days after the filing, courts require involved parties to produce a plan to define how ESI will be produced. Failure to meet these timelines could result in court-ordered sanctions.

While the FRCP is onerous in ways, the amendments woke up the legal field to the deluge of electronic data. This is pertinent. Electronically-stored information is ubiquitous with more than 90 percent of new data created in digital form, and much of that data never converted to paper.

Organizations can no longer afford a laissez-faire approach to e-discovery. But many still take it. Almost 40 percent of in-house attorneys and 57 percent of firm attorneys believe their companies and clients are not prepared to comply with discovery requests under the FRCP, according to a study released in late 2008 by Océ Business Services.

The study found 42 percent of companies lacking internal processes for e-discovery, although two-thirds of those unprepared organizations reported plans to implement e-discovery standards in the next six to 12 months.

In light of evidence that shows litigation increases amid economic slumps, organizations better get their e-discovery ducks in a row. The FRCP has little sympathy for those that don’t.


electronic document discovery