Urban myths, legends and the FRCP

If you work with attorneys, records managers, IT professionals and the like, you probably know that there’s still confusion about the newly amended Federal Rules of Civil Procedure (FRCP)). Many commentators have overstated the impact of the recent amendments as a way to justify everything from e-mail archival to knowledge management systems. Because of the mix of myth and reality, there’s still uncertainty about what the rules mean, and perhaps more importantly, what they don’t mean.

Federal first

It’s essential to note that the rules only apply to litigation within the U.S. federal court system. State court litigation, international lawsuits, arbitrations and administrative actions (just to name a few) aren’t under the aegis of the Federal Rules of Civil Procedure. While it’s true that certain state courts (Minnesota, for example) have selectively adopted the new discovery provisions, most have not. So, the first step is to check your venue. Then, assuming the rules do apply because your organization is in federal litigation, the impact, while still not crystal clear, takes on more definition.

Relevancy filters
As a starting place, the discovery process (as part of litigation) is fundamentally limited by Rule 26 to information (electronic and otherwise) that is "relevant" to the case at hand (i.e., "relevant to the claim or defense of any party"). That distinction is critical because for the most part, it prevents the responding party from having to cast a companywide net for all data, a task envisioned for many content management systems. Certainly, the ability of some systems to access all user-created data is valuable when searching for relevant data, but there are other ways too.

No express retention or preservation duties

Legions of articles proclaim that the amended rules create wholly new duties to retain information in general, as well as infusing new duties to preserve electronic data once litigation is anticipated. Instead, however, the new rules expressly disavow creating truly new retention or preservation duties. While it is undoubtedly a good practice to have a retention policy, given the welter of statutes and regulations that do create retention duties, the rules do not mandate that a company create one ahead of litigation.

What is true, however, is that the new rules have powerful implications for preservation once litigation is likely, because of the requirements to understand, negotiate and produce relevant information early in the litigation process. Under the new rules, it is crucially important to be able to identify and retain potentially relevant data once litigation is filed (or reasonably likely). And, yet, the burden of placing a legal "hold" on data, while often significant, certainly can be achieved without a formal document retention/deletion policy. Again, the litigation "trigger" is key.

"Records" aren’t the focus

Opinions differ about the impact that the rules have on "business records." This issue is nebulous because it is easy to confuse potentially relevant data corresponding to litigation with "business records," which are often used in two different contexts. First, there is the "business records" exception to the hearsay rule, which is quite specific and affects the admissibility of evidence in court. The second, broader definition applies to organizations as they attempt to define a records management program to meet the numerous state, local and federal mandates. Commonly, as part of this complex initiative, companies will create records retention programs that specifically define official "records," unofficial "records," "non-records," as well as specific retention periods for certain types of records.

When the company’s records protocol is put into place, there may be some downstream nexus with the rules, but it won’t manifest itself until federal court litigation arises, as described previously. The most common intersection occurs when a records retention policy prescribes a deletion event that contradicts the legal "hold" requirements for a record that is likely to be relevant to litigation.

In my opinion, therefore, while the new rules are tremendously significant, they do not take content and turn it automatically into a "record" under either framework. Donald Skupsky, a records management expert, probably said it best in a 1995 article presented in ARMA’s Records Management Quarterly (now Information Management Journal). He wrote, "Due to the special issues of records in litigation and diversity of information technology systems, it may never be possible to develop a universal definition that will meet the needs of both courts and the records and information management industry. In fact, it might even be best that the records and information management industry stop using the term ‘record’ altogether."

In sum, it’s important to separate myth from reality when it comes to understanding and complying with the revised rules. Failure to do so
can create an unpleasant scenario where your organization will either under-prepare or over-prepare for these important litigation guidelines.