CHAPTER 1: WHAT ARE THE FEDERAL RULES OF CIVIL PROCEDURE? – E-Discovery and the Federal Rules of Civil Procedures


The Federal Rules of Civil Procedure (FRCP) govern the activities of all US federal civil courts. Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a ‘civil action’, as opposed to a criminal action). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or statements of case, motions or applications, and orders, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, the various remedies available, and how the courts and clerks must function.

Scope of the FRCP

Because the FRCP applies to all civil cases heard in federal courts, any entity that is or may be a party to a federal civil lawsuit (which includes almost any business, non-profit organization, or government agency) should be familiar with the FRCP and prepared to handle discovery requests involving electronically stored information (ESI). Organizations are especially likely to have to navigate complex E-Discovery requirements for lawsuits involving employment discrimination, securities law violations, unfair trade practices, and intellectual property cases.

The FRCP do not apply to state courts, which are free to develop their own rules of civil procedure. Most states, however, have adopted rules that are similar to the FRCP, so the work that an organization does to facilitate E-Discovery for federal cases is usually applicable to state cases as well.

Why the FRCP were amended

Traditionally, the rules of discovery were focused on tangible objects such as paper documents and physical evidence. Electronic information presented unique challenges to the legal system. The volume, transience, and persistence of electronic information differentiate it substantially from paper documents. From a volume standpoint, the average employee generates more than 800 megabytes of discoverable information each year.2 Electronic information is often accompanied by metadata (information about information), which is not typically present in paper information. Electronic information is difficult to control or destroy. There can be multiple copies of it, the distribution of which is unknown. And deleted information can often be restored. The costs of extracting electronic information can also be substantially higher than for pulling up paper archives. In one case involving the restoration of 93 back-up tapes, the process was estimated to cost $6.2m before attorney review.3

2 Peter Lyman and Hal Varian, ‘How Much Information 2003’, University of California at Berkeley, School of Information Management and Systems, 2003.

3 Richard Van Duizend, ‘Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information’, Conference of Chief Justices, August 2006, p vi.

The application of discovery rules that were designed for paper documents to electronic information resulted in a confusing and often diverging body of case law (judicial rulings that become precedents for subsequent cases). In 2001, the Advisory Committee on Civil Rules formally recognized the problem and initiated a five year study of the topic. The results of that study were a set of amendments to the FRCP that were designed to standardize and improve the efficiency of the electronic discovery process. In essence, they represent the unification and codification of existing case law. These amendments were ratified by the US Supreme Court on 13 April 2006 and took affect on 1 December 2006.

The amendments to the Federal Rules are generally accepted to be a positive development for legal and technology professionals, as they clarify what was once confusing and lay out the specific obligations of the parties to a case.

What is ‘ESI’?

Prior to 2006, the only reference to digital information in the FRCP was the inclusion of the term ‘data compilations’ in discovery related rules. Even in this case, there was an expectation that electronic ‘data compilations’ would be printed out on paper for delivery to opposing counsel. With the December 2006 revisions, this term was replaced with the term ‘electronically stored information’ or ‘ESI’. The Conference of Chief Justices defines ESI as follows:

‘Electronically stored information is any information created, stored, or best utilized with computer technology of any type. It includes but is not limited to data; word-processing documents; spreadsheets; presentation documents; graphics; animations; images; e-mail and instant messages (including attachments); audio, video, and audiovisual recordings; voicemail stored on databases; networks; computers and computer systems; servers; archives; back-up or disaster recovery systems; discs, CDs, diskettes, drives, tapes, cartridges and other storage media; printers; the Internet; personal digital assistants; handheld wireless devices; cellular telephones; pagers; fax machines; and voicemail systems.’4

ESI can also include non-apparent information, or metadata, that describes the context of the information.

4 Ibid, p 1.