Federal E Discovery Rules

Justice demands complete disclosure of pertinent information.

The Federal Rules of Civil Procedure (FRCP) govern the rules of discovery in federal civil lawsuits. Discovery is the fact-finding period when both sides gather pertinent information. The FRCP expanded the rules to encompass electronically stored information (ESI) in 2006.

Discoverable Electronic Information

The rules are not specific about which electronic (E) information is and is not discoverable. Rule 26(b) states in part that "a party need not provide discovery of electronically stored information ... not reasonably accessible because of undue burden or cost." If the parties disagree, the presiding judge's decision prevails.

Producing Information

Documents are delivered via hard copy or electronic file. The requester can demand information in its native or original form. A document created in a word-processing program must be delivered electronically in that program to ensure that no information is lost or changed during conversion. Irrelevant information is blacked-out.

Evolving Technology

In the 2006 amendment, the FRCP wisely covered all its bases by warning companies that Rule 26 does not necessarily protect instant messaging communication. As technology evolves, new forms of computer-to-computer communication are perhaps discoverable information. Tweeting on a business computer creates the possibility of a mind-boggling legal quagmire.

References

• Cornell University: Federal Rules of Civil Procedure
• Metropolitan Corporate Counsel: The New Federal E-Discovery Rules
• SC Magazine: Unmanaged instant messaging ... New Federal Rules of Civil Procedure

Resources

• Federal Rules of Civil Procedure