Federal Rules of Criminal Procedure: E-Discovery and Future Updates

This essay provides an overview of the Federal Rules of Criminal Procedure (FRCP) with a focus on the 2006 amendments, often referred to as the e-discovery amendments, which were largely influenced by the increasing use of electronic forms of storage. The essay highlights five critical areas addressed by the FRCP 2006, including the definition of discoverable materials as electronically stored information, the disclosure of electronically stored information, the form of presentation of electronically stored data, sources that are difficult or unreasonable to access, and the protection of work after production. It also discusses the safe harbor provision that protects a responding party from sanctions if information is unintentionally lost during routine operations, and the impact of the FRCP 2006 on the handling of electronically stored information, particularly in the eDiscovery and computer forensics fields. The essay concludes by suggesting that the FRCP might be outdated due to advancements in technology, such as cloud storage and social media, and proposes the inclusion of these forms of storage in future updates.

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FEDERAL RULES OF CRIMINAL PROCEDURE 2006
On December 2006 FRCP enacted new rules which were mainly influenced due to increased use of
electronic forms of storage. The rules were called e-discovery amendments. These amendments were
additions to the already existing rules. Form 35 was also amended in the same year (Balter, 2009). The
FRCP 2006 focused on five critical emerging areas that had a raised and needed to be addressed.
The first one was on the definition of discoverable materials whereby it was decided that they
introduce the terms ‘’electronically stored information ‘’ as a form of appreciating its existence
The second element was the drawing of initial attention towards Electronic discovery issues.
Under this element, it was established that each party has a mandate to disclose any form of
information that might be electronically stored to enable the court plan on its scope and inclusion
on the schedule of the court to avoid inconveniences later during court proceedings (Friendly,
2014).
The third element focuses on the form of presentation of the electronically stored data. Under
this component, the rules stipulate that the part that requires data to spell out form given in. Since
in most circumstances, the requesting side might not know the preferential storage type of other
party the rules have a provision that if a requesting party does not give a specific form to be
given the information then the responding party is allowed to give the information in a manner
which is reasonable and preferable Mia Mazza, E. K. (2008).
The fourth element is on sources that might be difficult or unreasonable to access information
from. The rule provides that encase the responding party demonstrates to the courts that for
access of such information from its sources will result to high unreasonable costs the courts will
not compel it to provide the information. This rule protects the party responding from giving
information which hard to retrieve.
The fifth element is on the protection of work after production. This amendment provides that
the receiving party is mandated to safeguard the information of the responding party after it is

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produced. Such information in the custody of the requesting party should be destroyed ones its
purpose is concluded. The receiving party is restrained from using, disclosing the information to
anyone. The right of ownership of the information is vested on the responding party until the
claim is resolved.
The last element was on what is known as safe harbour. This amendment protects the
respondent. That is if a responding party loses information unintentionally when perming its
normal routine work or during an operation which can be proved to be of good faith then the
court cannot impose sanctions on the respondent to provide the information (Dession, 2010).
FRCP 2006 greatly affected the electronically stored information in different ways. Many people
started being cautious on the manner of handling and safeguarding information because it might
end up being needed in courts. Secondly, people drew attention to the kind of electronic storage
equipment that they procure for their use (Heikkila, 2008).
The mostly affected section is the eDiscovery and computer forensics field which will feel the
impact of the rules in that the amendments will call for professional expertise in the field of
compute forensics while calling for utmost good practices in the industry. This means that
retraining of experts will be a key requirement.
The amendments might be a little outdated in the recent world due to advancement in technology
and other modern forms of storage technology (Orfield, 2017). Currently we have cloud storage
which was not there back in 2006. Therefore given a chance to enact the 2018 FRCP I would
propose inclusion of all cloud storage forms and the inclusion of all social media content.

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REFERENCES
Balter, H. G. (2009). Federal Rules of Criminal Procedure. J. St. B. of Cal., 20, 91.
Dession, G. H. (2010). The New Federal Rules of Criminal Procedure: I. Yale LJ, 55, 694.
Friendly, H. J. (2014). The Bill of Rights as a Code of Criminal Procedure. Cal L. Rev., 53, 929.
Heikkila, F. M. (2008). E-discovery: Identifying and mitigating security risks during litigation.
IT Professional, 10(4).
Mazza, M., Quesada, E. K., & Sternberg, A. L. (2008). In Pursuit of FRCP 1: Creative
Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored
Information. Rich. JL & Tech., 13, 1.
Orfield, L. B. (2017). Preliminary Draft of the Federal Rules of Criminal Procedure. Tex. L.
Rev., 22, 37.

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