FRCP and Why You Should Care

I've always enjoyed legal thrillers such as those written by Scott Turow and John Grisham. I enjoy the cut-and-thrust courtroom arguments and the sense that logic and reasoning are valuable in and of themselves. That doesn't mean that I want to be in a courtroom, merely that I find the whole concept intellectually interesting. I suspect that most messaging administrators don't want to get too close to the courtroom either. With that in mind, I thought it might be interesting to take a look at some proposed changes to the Federal Rules of Civil Procedure (FRCP) and how they might affect your messaging environment.

The FRCP, simply put, is the rulebook for civil suits in US federal courts. It defines a uniform set of requirements and procedures for trying civil suits, thereby allowing all US federal courts to operate with a uniform standard, largely eliminating the risk that a decision in one court will be found invalid on procedural grounds in another court. Many states base their rules for civil trials on the FRCP, too. (If you're interested in seeing the FRCP rules, check out the Legal Information Institute at Cornell Law School at ).

The changes to the FRCP have to do with how discovery requests for electronic information are handled. For those of you who aren't law nerds, a discovery request is what you get when you're involved in a lawsuit: The other side asks you to produce relevant records in a process known as "discovery." Of course, you can always argue that your opponent is asking for things he or she doesn't need or shouldn't have; discovery arguments are a big part of most major civil litigation—and are entertaining as well.

The proposed FRCP revisions will change some aspects of how electronic information is handled. First, electronically stored information is no longer automatically excluded from discovery requests. This is a big change; it will require electronic records to be included unless otherwise specified. Another major change is that discovery requests for business records that require searches must include searches of electronically stored information, not just paper or offline archives.

My favorite change is in rule 37, paragraph (f): "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system" ( ). This "safe harbor" clause means that companies that make good-faith mistakes in their disaster recovery planning or operations can't be penalized. Companies that act in bad faith, however, can still get hammered, which is as it should be. However, this change isn't at all settled; it might not be included in the final rules when they're adopted.

One more significant change is that parties to a civil action can claim that some electronically stored information is not "reasonably accessible" because of "undue burden or cost." Either party can argue (and no doubt will) about what's "reasonable" or "undue." However, the rules also provide for a judge to order electronically stored information production for "good cause," another somewhat malleable (and thus arguable) term.

These changes have been percolating for a while. They were proposed in April 2005, and they'll take effect (unless Congress takes action) on December 1, 2006. Attorney Michael C. Smith has a good legal summary of the changes on his blog at

Of course, I'm not an attorney, so if the legal nuances of these changes are (or might be) important to your company, you should consult with competent counsel. However, it might not be a bad idea to review what you know about electronically stored information production and retention, even if you don't ever expect to face a bevy of attorneys. It's better to be prepared than to be the model for Grisham's next courtroom thriller

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