US district courts need to remain consistent with the Federal Rules of Civil Procedure, a framework promoted by the US Supreme Court. These rules, which operate in conjunction with the Rules Enabling Act, govern civil procedure in district courts across the US. 

One critical component of the FRCP is Rule 26. This rule outlines official discovery and eDiscovery procedures for electronically stored information (ESI). As such, it’s essential in the age of big data. 

Keep reading to learn more about eDiscovery, what FRCP Rule 26 contains, and why it’s important. 

What Is eDiscovery? 

Legal eDiscovery occurs during the pretrial discovery process. Here, both sides meet to exchange information and set ground rules for the trial.  

In short, eDiscovery involves collecting, managing, securing, culling, and exchanging data that’s relevant to the case at hand. It’s similar to the legal discovery process, which encompasses a wider range of evidence—like paper, examinations, subpoenas, and depositions.  

Plaintiffs and defense teams engage in discovery and eDiscovery to establish a working model for sharing and contesting electronically stored information (ESI) evidence.  

The Federal Rules of Civil Procedure: A Brief History 

Up until the 20th century, American courts lacked consistency and uniformity.  

In fact, many district courts across the country still had British forms of action along with admiralty and equity processes. This made it difficult for the federal government to enforce laws consistently. 

To modernize the US federal court system, Congress enacted a series of reforms starting in 1872 with the Conformity Act. This act mandated federal courts match procedures to their states. The Rules Enabling Act of 1934 came next. That law gives the Supreme Court the authority to issue general rules of practice and procedure. It also lets them issue rules of evidence for cases for federal courts.

The FRCP became the law of the land in 1937. Since then, there have been several amendments to it. 

What Is Rule 26 of the Federal Rules of Civil Procedure? 

The FRCP was updated in 1970, with Rule 26 outlining acceptable legal discovery procedures. Further amendments took place in 1993 and 2010.  

As it stands today, Rule 26 still outlines how district courts should handle legal discovery. Most state and local courts follow this model as well. 

The main purpose of Rule 26 is to ensure cooperation and communication between plaintiffs and defense teams. Rule 26 aims to prevent legal teams from getting caught off guard with evidence in court. This, in turn, ensures an efficient, fair, and cost-effective trial—and appropriate legal outcomes. 

FRCP Rule 26: Key Points

Now that you have a better idea of the rule, here’s a breakdown of the major sections within FRCP Rule 26

FRCP 26 (a): Initial Disclosures 

FRCP 26 (a) explains that, without exemption, the disclosing party needs to provide several types of information without awaiting a discovery request. This includes, among other things, 

  • the names and contact information for all parties with access to discoverable information or evidence
  • a breakdown of all estimated damages
  • notification of expert testimony, and
  • a catalog of any ESI that will appear in court.

FRCP 26 (b): Discovery Scope and Limits 

FRCP 26 (b) states that unless limited by court order, “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 

The rule outlines the general scope of discovery, specifies limitations on frequency and extent, and clarifies trial preparation materials. It also explains rules regarding experts during trial preparation, as well as claiming privilege and protecting trial materials. 

FRCP 26 (c): Protective Orders 

FRCP 26 (c) states that a “party or any person from whom discovery is sought” has the right to claim a “protective order in the court where the action is pending—or as an alternative on matters relating to a deposition.” 

Among other actions, the court may 

  • forbid the disclosure of discovery
  • specify terms for the disclosure of discovery
  • prescribe a discovery method other than the one selected by the party seeking discovery, and
  • forbid or limit the scope of inquiry to certain matters.

FRCP 26 (d): Timing and Sequence of Discovery 

FRCP 26 (d) sets acceptable timing policies for discovery. For example, a party can’t seek discovery from a source before the parties have conferred. In addition, it explains that parties may use methods of discovery in any order, and “discovery by one party does not require any other party to delay its discovery”—unless, in both cases, “the parties stipulate or the court orders otherwise.” 

FRCP 26 (e): Supplementing Disclosures and Responses 

This section of FRCP 26 explains that a party who has made a disclosure under Rule 26(a) or who has responded to an interrogatory, request for production, or request for admission needs to supplement or correct disclosures and responses in a timely manner and as ordered by the court.  

FRCP 26 (f): Conference of the Parties 

FRCP 26 (f) explains that “parties must confer as soon as practicable…and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16 (b).” That said, this rule doesn’t apply to proceedings exempt from initial disclosure under Rule 26(a)(1)(b), or if the court orders otherwise.  

This section also outlines specific rules for conferencing parties, like how “parties need to consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case.” 

FRCP 26 (g): Signing Disclosures and Discovery Requests, Responses, and Objections 

FRCP 26 (g) says that at least one attorney of record needs to sign all disclosures under Rule 26(a)(1) and (a)(3) and every discovery request, response, or objection “in the attorney’s own name—or by the party personally, if unrepresented.” In addition, signatures must state the signer’s address and telephone number. By signing, the attorney or party certifies that to the best of their knowledge, all information is complete and correct. 

It also says that “other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed,” and that if certification violates the rule, the court must impose appropriate sanctions. 

Streamlining eDiscovery With Venio Systems 

FRCP Rule 26 is dense and complex, and there are a lot of moving parts for legal teams to track. What’s more, Rule 26 is just one part of the FRCP that legal teams need to pay attention to.  

The process can be overwhelming. So, teams need to streamline operations wherever and whenever possible. 

For assistance, many legal teams and law firms are turning to cloud eDiscovery platforms like Venio Systems, which offers end-to-end eDiscovery management. By using Venio Systems, it’s possible to meet eDiscovery deadlines and efficiently respond to requests for information. 

Using Venio Systems gives you an easy way to save time and prevent costly errors during discovery that can lead to fines, court sanctions, and court losses. There’s no need to rely on manual processes that cause frustration. Instead, you can use purpose-built technology that makes the job easier. 

What’s more, Venio Systems also offers eDiscovery certification, providing essential product training and eDiscovery education for eDiscovery professionals. By working with Venio Systems, eDiscovery professionals can get up to speed with the latest trends and updates in this emerging field.  

To get started, request a free trial today

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling