Tuesday, 25 November 2008

eDiscovery and the US Federal Rules of Civil Procedure (FRCP)

In December 2006 number of amendments to the Federal Rules of Civil Procedure (FRCP) were introduced which simplified process of managing electronic records associated with the litigation process. In order to allow a simplified process of accessing “electronically stored information”, revisions and additions were introduced into Rules 16, 26, 33, 34, 37, 45, and Form 35. The U.S. Court’s Federal Court website (http://www.uscourts.gov/rules/congress0406.html) contains additional information concerning these amendments.

The amendments to the FRCP incorporate five aspects of the discovery:

  1. The FRCP includes a definition of discoverable material;
  2. The amendments incorporate processes concerning the timely consideration of issues relating to electronic discovery. This includes provisions for the format of the documents that are produced;
  3. Provisions are made for instances where the discovery of electronically stored information would be difficult due to requirements to access sources that are not practically available;
  4. The amendments have included a course of action that allows a party to assert a claim of privilege or work product protection subsequent to the production of the documents; and
  5. Protection of organizations who are attempting to act in good faith through a “safe harbor” limit on sanctions under Rule 37. The section protection organization against the loss of electronically stored information that has occurred due to a routine process from computer systems.
Eric Rosenberg, former litigator with Merrill Lynch & Company stated, “Basically what has happened in this country [the US] is that discovery of documents which takes place as part of civil litigation and a part of criminal investigations has come to routinely include electronic documents”. E-record and E-mail retention is no longer simply about storing records. It is about managing risks. The risks of not properly managing e-mail and other electronic documents are significant and increasing with time.

Unfortunately, the Australian courts are still lagging. The planned updates to the evidence rules of the Australian Federal court are past due and have again been postponed.

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