The Federal Rules of Civil Procedure govern the handling of a civil lawsuit as it progresses through the phases of pleading, discovery, motions, pretrial practice, and trial. During the discovery phase, each party discloses to the other party all of the evidence it has that is relevant to the dispute at hand or that may lead to discoverable information.
The phrase “electronic discovery” or “e-discovery” refers to the discovery and disclosure of electronically stored information. Rules 16, 26, 33, 34,37 and 45 of the Federal Rules of Civil Procedure were amended in 2006 to govern the electronic discovery process.
Changes to the rules
Rule 16 allows the court to establish rules regarding handling of the e-discovery process before the discovery process gets under way. Preservation and collection of e-discovery can be very costly, but the court can control costs by setting protocol early in the case.
Rule 26 contains a series of e-discovery rules. These rules establish “electronically stored information” as a separate class of information, to be treated differently than information stored on paper. The rule requires the parties to work together on a plan for preserving, collecting, and exchanging e-discovery.
Rule 26 also differentiates between accessible information, which is readily available, and inaccessible information, which may be stored on old floppy disks that can no longer be read by modern computer equipment.
Finally, Rule 26 also establishes a “clawback” process, by which a party can “claw back” electronic information which was inadvertently disclosed to the other side during discovery but which would otherwise have been protected by the attorney-client privilege.
Rule 33 clarifies that electronically stored information must be included when a party answers interrogatories – written questions that each side submits to the other side as part of the discovery process.
Rule 34 sets rules about the format by which the parties produce electronic records to each other. For example, the parties may agree to provide records in .pdf or .tiff format.
Rule 37 protects parties that make a reasonable, good faith effort to preserve and produce all their electronic discovery, but have nevertheless made some of the information unavailable through the ordinary course of business. Rule 37 also establishes penalties for parties who refuse to participate in the discovery planning process described in Rule 26.
Rule 45 clarifies that subpoenas issued to third parties may include electronically stored information within the scope of the information requested. This means that parties who are not involved in the lawsuit can be required to turn over their electronically stored information pursuant to the discovery agreement that the parties agreed to during the Rule 26 meetings.
Discovery in a civil case is conducted according to the Federal Rules of Civil Procedure. Electronically stored information can be expensive to preserve and collect, so the Federal court amended the rules in 2006 to make special provisions to govern the handling of electronically stored information.