Federal Rules of Civil Procedure: Summary of amendments and implications

Recent amendments made to the Federal Rules of Civil Procedure (FRCP) require all companies to retain all their corporate correspondence (including online records) and make them available to the court in case of a lawsuit, without the court having to ask for them specifically.  This article will provide a brief description of the new amendments and their implications on records retention and management.

Who it affects
The Federal Rules of Civil Procedure govern the conduct of all civil actions brought in the U.S. Federal district courts. Because state law is separate, these exact rules do not apply to suits brought in state courts.  However many states have similar rules modeled on these provisions.  As such, all companies who may have a case in federal court (and quite possibly in state courts as well) have to comply with the FRCP. 

The 2006 amendments have also been approved and recommended in the Sedona Principles, which are widely cited rules crafted by top lawyers, judges, consultants and academics to govern issues concerning electronic discovery, antitrust law, intellectual property rights, and complex litigation.

What the amendments are
There are two main amendments made to the FRCP under Section V, Depositions and Discovery.

Rule 26:  General Provisions Governing Discovery; Duty of Disclosure
This rule states that companies must retain all corporate records, including email and data compilations, and make them available to the court as soon as there is a reasonable expectation that a lawsuit might occur, without the court having to specifically make a discovery request.  In addition, the company must disclose the names and contact information of every individual likely to have “discoverable information” which may help the company to support their claims.  These disclosures must be made in writing and signed.

Rule 34: Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
This rule states that “any party” can request relevant records (those discussed in rule 26) for inspection and the company in question is responsible for making this information available within 30 days of the request.

Impact and implications
The amendment to Rule 26 was developed to make court proceedings more time-efficient. In order to meet the requirements of this rule, companies need to implement a thorough records management system to effectively maintain their corporate records.  Fortiva provides a fully managed email archiving system which securely retains all corporate email records according to customer-defined retention policies.  In addition, Fortiva gives companies instant access to valuable correspondence which may prove a company’s innocence in a potential lawsuit.

To comply with Rule 34, companies have to be equipped to submit the requested documents to the other parties within the specified time frame.  This is where Fortiva’s search capability comes into play as it allows organizations to quickly identify the documents relevant to the discovery request in order to respond on time.

Click here for a complete copy of the FRCP (2005 edition) http://judiciary.house.gov/media/pdfs/printers/108th/civil2004.pdf