E-Discovery Basics: The 2006 changes to the FRCP

On December 1, 2006, the Federal Rules of Civil Procedure (FRCP) were changed, in an attempt to address electronic discovery.
(For the curious, the Rules which were changed were Rules 16, 26, 33, 34, 37 and 45, plus Form 35.)
For about ten years, the federal court system in the United States had struggled with how to handle electronic discovery, and the 2006 changes were an attempt to modernize the discovery process. The changes to the Federal Rules are significant because they are applied not only at the federal level, but also at the state level, as many states in the U.S. use the FRCP as a guideline for their own rules.
The 2006 changes defined the term "electronically stored information", and defined it broadly. (This term is sometimes shortened to "ESI".)
The term is meant to include any kind of information in electronic form.

Here is a brief summary of some of the changes:

- The rules require the parties to a lawsuit to discuss ESI when they meet to talk about the case (this is called the "meet-and-confer").
- The rules roughly adopted Judge Schiendlin's two-tiered system of reasonably accessible data and not reasonably accessible data.
- A "claw-back" procedure was established: if one party accidentally produced material that was subject to attorney-client privilege, the producing party can ask the other side to return or destroy the data.
- The rules created a "safe harbor" - a party usually cannot be sanctioned for not providing ESI that was lost or destroyed as part of the routine, good-faith operation of an ESI storage system.

The rule changes tried to address some of the major issues in electronic discovery:
- The court system wanted to encourage the parties to a lawsuit to be on the same page when dealing with ESI, and therefore they must talk about ESI when they meet and confer about the case, instead of ignoring the issue and then battling over electronic discovery later in the case.
- The drafters of the amendments wanted to encourage parties to quickly produce data; if they included privileged material by accident, the "claw-back" would (in theory) protect them. Of course, when this happens, the other side now has emails between an attorney and client, and can read them. They can't use or disclose the information, but they have it.
- The "safe harbor" was meant to calm some nerves: companies can destroy their data as part of their business routine. However, once a litigation hold is placed on the information, then the data can't be lost or destroyed.

The 2006 changes to the Federal Rules of Civil Procedure removed some uncertainty in the electronic discovery process. They weren't perfect, but they were a good attempt at modernizing the Rules.