CHAPTER 3: ORGANIZATIONAL IMPACTS OF THE AMENDMENTS TO THE FRCP – E-Discovery and the Federal Rules of Civil Procedures

CHAPTER 3:
ORGANIZATIONAL IMPACTS OF THE AMENDMENTS TO THE FRCP

The most significant organizational impacts of the FRCP amendments include:

• E-Discovery timeframes: Organizations no longer have the luxury of virtually limitless amounts of time in which to respond to E-Discovery requests. The ‘meet and confer’ session must take place at least 21 days before the court holds a scheduling conference or enters a scheduling order, which resolves various issues related to discovery and sets a schedule for completion of discovery. Under Civil Rule 16(b), the scheduling conference must occur, or the judge must enter a scheduling order, within 120 days after the complaint has been served on the defendant. That means that organizations have, at most, 99 days to locate ESI that may be subject to discovery.

• Ignorance is no longer bliss: Organizations cannot rely on a poorly organized / ad hoc response to E-Discovery requests. Given the need to directly discuss issues of existence, accessibility, and form upfront, organizations simply must know where and how electronic information is stored and the costs of production prior to the commencement of litigation.

• Multi-disciplinary approach: Attorneys can no longer throw individual E-Discovery requests and litigation hold demands ‘over the wall’ to the folks in IT. Records management professionals, IT personnel, compliance experts, and legal counsel all need to work together to ensure that a comprehensive framework is developed for handling E-Discovery requirements properly and to oversee its ongoing operation.