Compliance: FRCP Rule 26(f) — Being Prepared to Provide Your Data

The new Federal Rules of Civil Procedure (FRCP) rules went into effect on December 1st.  What do the new rules mean?  There’s no easy answer, but let’s look in a little more depth at just one part of the regulatations relating to Electronically Stored Information (ESI) — Rule 26(f) and eDiscovery — “Early Discussion Preparedness” or “Meet and Confer”.

The first step in any eDiscovery litigation is to identify all relevant data sources andf data formats.  With the new regulations, all data is subject to scrutiny — both structured and unstructured data.  Central to Rule 26(f) is the ability of a company to identify all data sources in a company. 

Rule 26(f) states that parties must confer “to discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning: … (3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (4) any issues relating to claims of privilege or protection as trial-preparation material, including – if the parties agree on a procedure to assert such claims after production – whether to ask the court to include their agreement in an order; …”

Four issues are discussed at the initial “Meet and Confer” meeting: 

• Which data and how it is to be filtered
      What Search strategies and Keyword Lists?
• Form of production
      How should the data be presented?
• Data preservation
      How can existing data be frozen to avoid any deletion or alteration?
      Identify which data types must be preserved and what can be deleted or recycled
• Privilege waiver
      How can privileged information be withheld from the data produced?
      Separating privileged data from non-privileged data can be extremely time consuming and expensive

Are you prepared?  Here is a list of five best practices towards complying with the requirements:

1. Understand what data exists in the company and what format the data is stored in
2. Establish a plan for data retention and disposition
3. Consider consolidating unstructured data into one central or a small number of data repositories
4. Data deletion policies need to provide a method for being pre-empted to allow for “litigation hold” periods during which normal disposition rules are suspended
5. Develop and, if possible, test your plan of action prior to being hit with any litigation