FRCP Simplified - How it Affects You

You might have already heard this before but let me say it one more time, just for emphasis: The new amendments to the Federal Rules of Civil Procedure (FRCP) affects all of us - small businesses as well as large ones, government agencies as well as companies. Any organization that could face a law suit, must be aware of these rules, long before being forced to by opposition lawyers.

But how do the new rules affect you? Prior to the new amendments, there were no rules that formally recognized electronic evidence during civil litigation, despite some interesting recent findings:

• According to the international law firm of Fulbright & Jaworski, 89% of companies reported that at least one new suit was filed against the company during the past year, and
• According to MIT, more than 50% of such litigation cases includes e-mail as evidence.

The December 2006 FRCP amendments now formally recognizes the unique role of Electronically Stored Information (ESI) in civil cases, and defines a set of obligations pertaining to its production as evidence. The following is an abbreviated synopsis of the changes:

• Rule 16: Establishes a process for addressing early in the proceedings, any issues pertaining to the disclosure of ESI e.g. how both parties intend to deal with ESI evidence.
• Rule 26: Defines the responsibility of a party to disclose ESI evidence early in the proceedings. It also explains the responsibility for identifying the sources of information when a party feels that some ESI is impractical to produce, and clearly outlines a requirement to discuss any issues related to disclosure of ESI. When you are sued, you may only be provided with as little as 30 days notice.
• Rule 33: Stipulates that an interrogatory review of business records must include ESI. Therefore, with this amendment, there is no longer any doubt that evidence requested of you during a civil suit, must include e-mail messages, if they are relevant.
• Rule 34: A requesting party can specify the form of production of e-mail evidence. In other words, the other party may specify that the e-mails you are to produce in discovery, must be in their original format, and not a representation of the message such as a printout or an image (e.g. TIFF, PDF).
• Rule 37: Provides protection from sanctions when information is lost during routine "good faith" operations. But since routine deletion of potential evidence through regular deletion of e-mail messages from the mail-server (the "Smoking Gun") can hardly be considered as "good faith", this effectively puts an end to this age-old corporate legal tactic.
• Rule 45: Imposes responsibility on a party when subpoened to include ESI in its searches. The subpoena may specify the form of e-mail evidence. But, be aware that when the form of e-mail messages is not specified, that anything other than original form may lead to a challenge of authenticity (e.g. "Chain of Evidence") .
  

These are only my opinions of the situation, but, I am not a lawyer. You should seek the advice of qualified and knowledgable legal experts.