Amendments to the Federal Rules of Civil Procedure

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If you have ever been involved in a federal civil lawsuit, you may be familiar with the Federal Rules of Civil Procedure (FRCP).  The FRCP are a set of rules that regulate federal civil lawsuits. The rules address issues from court and party obligations to enforcement of remedies. The FRCP was first adopted by order of the Supreme Court in 1937 and placed into effect in 1938.

On December 1, 2015, these rules were amended. Many of the changes affect electronic discovery (e-discovery). Prior to the internet age, discovery and discoverable evidence were primarily based upon paper transactions.  With the rapid rise of the web, many started to turn to electronic storage of information.  As the data and information-storage landscapes began to change, the rules had to change.

The amendments brought changes to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55.  The amendments also brought on the abrogation of Rule 85 and the Appendix of Forms. The changes that affect e-discovery are as follows:

  • Rule 16: Shortens timing for scheduling orders by 30 days. Scheduling orders must be done within 90 days after the defendant is served or 60 days after the defendant has appeared. The scheduling order can now include the preservation of electronically stored information.

By including the preservation of electronically stored information in the order, the defendant is on notice to preserve information. This includes requiring the defendant to stop automatic purging policies, at least to the relevant data.

  • Rule 26: Places a limit on the scope of discovery. Discovery must be proportional and reasonable. The court may also limit the frequency of discovery requests and the extent of such requests if they are deemed out of scope.

The limitation of scope on discovery is important for e-discovery because of the large volume of electronically stored information and the cost of delivering such items. Ultimately, the court makes a benefit-burden analysis to determine whether a particular item is discoverable. The amended changes also deleted a voluminous section that referred to conducting discovery to identify how or where the information is stored. This allows for the complaining party to depose the opposing party’s information technology team in order to determine how and where the information is stored within the network system.

  • Rule 37: The loss of electronically stored information allows the jury and/or judge to presume the lost information was unfavorable to the party.  The loss of information could allow for the dismissal of the action or the entrance of a default judgment.

This is a controversial amendment because of the long-standing practice of purging old electronically stored information. Many companies have an automatic purging policy for electronically stored information. By engaging in this policy, companies can get in trouble for not preserving relevant information in a lawsuit years after the incident occurs.

The changes are in effect for all proceedings commenced on or after December 1, 2015. It is also in effect for pending proceedings commenced after April 26, 2015, as long as, it is just and practicable. On April 26, 2015, the Supreme Court adopted the amendments.

At our law firm, we assist clients with legal issues related to business, e-discovery, and technology-related issues. You may contact us to set up an initial consultation.