ESI and Federal Rules of Civil Procedure

This assignment delves into the Federal Rules of Civil Procedure, specifically the 2006 amendments concerning Electronically Stored Information (ESI). It analyzes the applicability of these rules in today's legal landscape, considering subsequent revisions and proposed changes. The focus is on understanding how these rules shape the management, retrieval, and use of ESI in litigation.

Running head: FEDERAL RULES OF CIVIL PROCEDURES
Federal Rules of Civil Procedures
Name of Student-
Name of University-
Author note-

1FEDERAL RULES OF CIVIL PROCEDURES
Executive summary
This report will provide a background on the Federal Rules of Civil Procedure (FRCP). It will
discuss the rules, mainly of the 2006 amendments regarding Electronically Stored Information
(ESI). Furthermore, the report will provide the intended purposes, elements of the FRCP, along
with the applicability of the ESI related rules in the present day.

2FEDERAL RULES OF CIVIL PROCEDURES
Table of Contents
Background......................................................................................................................................3
Major elements of FRCP.................................................................................................................3
Intended purposes of the FRCP.......................................................................................................4
Effects on organizations due to emphasis on ESI............................................................................4
Applicability of the 2006 procedure today......................................................................................5
References........................................................................................................................................6

3FEDERAL RULES OF CIVIL PROCEDURES
Background
The Federal Rules of Civil Procedure (FRCP) is a bunch of principles and rules that
govern the civil procedures in the United States district courts. It is an usual requirement of the
federal courts to use the significant state laws as the rules for deciding cases, the courts, almost
all the time, use the FRCP as their procedural rules (O'Brien, 2015).
These rules were formed in 1938 and replaced the rules and procedures mentioned in the
Federal Equity Rules and Conformity Act by merging the procedures for the cases regarding law
and equity. Various revisions or amendments were made to the FRCP in 1948, 1963, 1966, 1970,
1980, 1983, 1987, 1993, 2000 and 2006 (Lin, 2016).
The FRCP includes a ‘notes section’, dealing with the amendments made in every
revision since 1938, which explains the logic used in the language. The changes made to the
FRCP in 2006 to the discovery rules were practical changes, for making it easy for the litigating
parties and the courts in managing electronic records (Favro, 2015).
The FRCP was totally rewritten later on, which came into effect from December 1, 2007
for the admitted purpose of understanding them easily. Substantial amendments were made to
various rules, which came into effect from December 1, 2009. The majority of these amendments
affected various time requirements and deadline calculations.
Major elements of FRCP
The common law pleading was more traditional, particular and formal in its requirements
and phrases, before the FRCP was established. The FRCP rests on the legal construction, known
as notice pleading, the creation and modification of which is done by law experts and is very less
formal and technical in its requirements. In the notice pleading, there is no dismissal in case of a

4FEDERAL RULES OF CIVIL PROCEDURES
suit brought by a plaintiff that lacks definite legal terms, as long as the claim is actionable
(Cotropia, et al., 2017). The policy that backs up this change is just providing a notice regarding
grievances and keeping the details left, for later in the case.
In addition to this a minority of the states use a system called code pleading, an ancient
system than the notice pleading that rests on the legal statutes. It stands between the common-
law pleading, which is obsolete, and the new notice pleading and puts the burden on the parties
to plead the facts of the case, which are ultimate, stating the entire case of the party and
highlighting the facts or allegations. In contrast, notice pleading requires a plain and short
statement, which shows the entitlement of the pleader to relief (FRCP 8(a)(2)).
This rule has an exception, that when one party claims fraud, the particular facts of the
claimed fraud must be pleaded by the party (FRCP 9(b)) (Schwerha et al., 2015).
Intended purposes of the FRCP
The intended purpose of FRCP is to govern the procedures and rules of the federal courts
in deciding civil cases. It aims to provide a flexible and faster set of procedures and rules for
addressing the previously existing complexities in the rules and procedures followed by the
courts and correcting the various wrongs in the civil procedures, held in the federal courts.
Effects on organizations due to emphasis on ESI
Rule 26(f) requires the meeting of the parties, early in the process of litigation and for
conferring about discoverable ESI and its related issues (Slesnick, 2016). This initial meeting
will include discussions on the type of ESI to be relied upon by the litigants, the way or its

5FEDERAL RULES OF CIVIL PROCEDURES
storage by each party, the form of producing information, accessibility of such information and
its related problems to privileged ESI.
Attorneys of the litigants have the responsibility of knowing the details of the information
systems and the retention policies of their clients and they are also required to have knowledge
about the ESI, which their clients will use for defenses or claims and whether the ESI contains
potential privileged information (Barry et al., 2014).
The classification of information is a step for information management and helps in the
phases of litigation. Knowledge about the information storage and accessibility will assist in
keeping cost down and will offer advantage by giving certainty in response to initial questions
under Rule 26(f) (Young, 2014). Thus, the FRDC rules of 2006, relating to ESI will affect the
manner in which organizations will manage the vast amount of their ESI created, stored and
retrieved (Hook, 2016).
Applicability of the 2006 procedure today
The rules, regarding the Electronically Stored Information (ESI) is applicable in the
present day. There have been various amendments made to the FRCP rules. In 2009 the whole
FRCP rules was rewritten. In April, 2015, high level changes were submitted to the Congress,
which is related to the early management of the case and overall scope of discovery (Laboy,
2015). These proposed amendments, conformed the Rules to be the best practices of many courts
and parties currently. These amendments, for the first time, addressed directly the resolving the
judicial differences and standardized practices and specially the sanctions for spoliation of ESI
(Clermont, 2017). Thus, the latest amendments also aim for the betterment of the rules regarding
ESI and hence, today also it is applicable as the 2018 amendments also require the same.

6FEDERAL RULES OF CIVIL PROCEDURES
References
(Favro, P. J. (2015). The New ESI Sanctions Framework under the Proposed Rule 37 (e)
Amendments. Richmond Journal of Law & Technology, 21(3), 8.
Barry, B., Smith, S. E., Schuelke-Leech, B. A., & Darwin, C. (2014). The Big ESI: Going fron
Big to Better in E-Discovery. ISJLP, 10, 721.
Clermont, K. (2017). Principles of Civil Procedure. West Academic.
Cotropia, C. A., Kesan, J. P., Rozema, K., & Schwartz, D. L. (2017). Endogenous Litigation
Costs: An Empirical Analysis of Patent Disputes.
Hook, S. A. (2016). Discovery Under the New Federal Rules of Civil Procedure.
Laboy, P. (2015, October). Litigation support: complying with the law when handling electronic
information during legal proceedings. In Proceedings of the 2015 Information Security
Curriculum Development Conference (p. 12). ACM.
Lin, T. (2016). The Evolution of American Discovery in Light of Constitutional Challenges: The
Role of the 2015 Rule Amendments to the Federal Rules of Civil Procedure. Hastings
Const. LQ, 44, 225.
O'Brien, S. M. (2015). Analog solutions: e-discovery spoliation sanctions and the proposed
amendments to FRCP 37 (e). Duke LJ, 65, 151.
Schwerha, J. J., Mitchell, S. L., & Bagby, J. W. (2015, January). Potential Changes to
eDiscovery Rules in Federal Court: A Discussion of the Process, Substantive Changes
and Their Applicability and Impact on Virginia Practice. In Proceedings of the

7FEDERAL RULES OF CIVIL PROCEDURES
Conference on Digital Forensics, Security and Law (p. 13). Association of Digital
Forensics, Security and Law.
Slesnick, F. L. (2016). Federal Rules of Civil Procedure and Federal Rules of Evidence-Selected
Text Relevant to Forensic Economic Testimony. J. Legal Econ., 23, 87.
Young, M. (2014). To Cure the E-Discovery Headache, Revamp the Rule 26 (f) Discovery
Conference. Nw. J. Tech. & Intell. Prop., 12, i.