Amendments to the Federal Rules of Civil Procedure

Amendments to the Federal Rules of Civil Procedure with regard to electronic discovery

Published under Risk Management
Title: Amendments to the Federal Rules of Civil Procedure with regard to electronic discovery
Source reference:
Topic: U.S. Federal rules with regard to the production of electronic documents in civil proceedings
Direct / indirect relevance Indirect. The obligation to cooperate in discovery before a U.S. court implies that adequate measures must be taken to ensure that compliance with these requirements is possible.
Scope: Relevant to any undertaking whose activities imply a risk of civil litigation before a U.S. court.
Legal force: U.S. Federal rules which apply to all civil proceedings before U.S. courts (regardless of the parties’ place of establishment)
Affected sectors: All sectors (any undertaking whose activities imply a risk of civil litigation before a U.S. court)
Relevant provision(s): Rule 16. Pretrial Conferences; Scheduling; Management
(a) Pretrial Conferences; Objectives.

(b) Scheduling and Planning.

Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.

The scheduling order may also include

(4) […]

(5) provisions for disclosure or discovery of electronically stored information;


Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

(a) Scope.

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

(b) Procedure.

The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d).

The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information — or if no form was specified in the request — the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

Unless the parties otherwise agree, or the court otherwise orders:

(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request;

(ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and

(iii) a party need not produce the same electronically stored information in more than one form.

Relevance to RM/RA: The discovery rules allow a party in civil proceedings to demand that the opposing party produce all relevant documentation (to be defined by the requesting party) in its possession, so as to allow the parties and the court to correctly assess the matter. Through the e-discovery amendment, which entered into force on 1 December 2006, such information may now include electronic information.

This implies that any party being brought before a U.S. court in civil proceedings can be asked to produce such documents, which includes finalised reports, working documents, internal memos and e-mails with regard to a specific subject, which may or may not be specifically delineated.

Any party whose activities imply a risk of being involved in such proceedings must therefore take adequate precautions for the management of such information, including the secure storage. Specifically:

• The party must be capable of initiating a ‘litigation hold’, a technical/organisational measure which must ensure that no relevant information can be modified any longer in any way.
• Storage policies must be responsible: while deletion of specific information of course remains allowed when this is a part of general information management policies (‘routine, good-faith operation of the information system’, Rule 37 (f)), the wilful destruction of potentially relevant information can be punished by extremely high fines (in one specific case of 1.6 billion US$).

Thus, in practice, any businesses who risk civil litigation before U.S. courts must implement adequate information management policies, and must implement the necessary measures to initiate a litigation hold.
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