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Over the last decade, the way that legal teams handle the pretrial discovery process has changed tremendously. Legal teams now need to factor in electronically stored information (ESI), which includes things like emails, videos, audio files, images, and other documents. They also have to follow protocols outlined by the Federal Rules of Civil Procedure (FRCP).
This post provides a quick primer on the history of the FRCP and how eDiscovery fits into the picture. It also shines a light on Rule 34, which is a key piece of legislation governing the eDiscovery process.
What Are the Federal Rules of Civil Procedure?
Up until the twentieth century, US courts were highly fragmented. In fact, many courts were still operating under British policies and procedures.
To streamline the US court system, Congress launched a series of reforms starting with the Conformity Act in 1872. In 1937, Congress passed the FRCP, which gave the Supreme Court permission to issue general rules of practice and procedure for district courts across the country.
Since then, the FRCP has gone through numerous rounds of amendments. However, the FRCP still provides the basic framework governing how district courts should operate. Many state and local courts also model the Federal Rules of Civil Procedure as well, making them a critical part of the US court system.
What Is eDiscovery?
Fast forward to the twenty-first century, and the US court system faced another rising challenge with the explosion of ESI in email platforms, mobile devices, and web browsers, to name just a few examples. Courts were getting inundated with rising amounts of data and needed a way to properly integrate ESI into courts for use as evidence.
Amendments to the FRCP in 2010 established clear rules for the handling of ESI. This, in turn, marked the beginning of the eDiscovery era.
In case you’re new to the topic, eDiscovery is very similar to the process of legal discovery. The purpose of eDiscovery—and discovery in general, for the matter—is to ensure fast, cost-effective, and fair trials by requiring legal teams to meet and exchange relevant information regarding evidence and witnesses ahead of a trial.
What Is Rule 34 of the Federal Rules of Civil Procedure?
One of the most important functions of the FRCP is to provide a uniform and repeatable process for requesting and procuring evidence during a court case. These rules are explicitly stated in Rule 34 of the FRCP, which outlines expectations around producing documents, ESI, and tangible things, or going onto someone’s property for inspection and other purposes.
Key Points of the FRCP’s Rule 34
Here’s a breakdown of the main points outlined in Rule 34 of the FRCP.
Rule 34(a): Issuing requests
Rule 34(a) states that a party may serve any other party a request within Rule 26(b) of the FRCP. In case you’re unfamiliar with it, Rule 26(b) places specific limitations on ESI. For example, under Rule 26(b), a party does not need to provide discovery of ESI “from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
Rule 34(a) enables a party to produce and permit the requesting party or its representative to inspect, copy, sample, or test any designated documents or ESI—including drawings, writings, graphs, charts, sound recordings, photographs, images, and other data or data compilations.
The rule also states that these items can be “stored in any medium from which information can be obtained either directly, or if necessary, after translation by the responding party into a reasonably usable form.” In addition, the rule expands acceptable items to include any designated tangible items.
Section (a)(2) goes on to “permit entry onto designated land or other property possessed or controlled by the responding party.” That way, the requesting party can inspect, survey, measure, test, photograph, and sample the property or any designated object or operation on it.
Rule 34(b): Procedure
Rule 34(b) clarifies the contents of each request. For example, it says that a request must describe with reasonable particularity each item or category of items legal teams will inspect. This prevents a free-for-all and limits the types of documents attorneys can examine during discovery.
In addition, the request must specify a reasonable time, place, and manner for the inspection and for performing the related acts. It also may specify the form or forms in which legal teams should produce ESI.
Section (b)(2): Responses and Objections
(b)(2)(A): Time to Respond
This section states that the party receiving a request has to respond in writing within 30 days of receiving it. Or, if the request was delivered under Rule 26(d)(2), then within 30 days of the parties’ first Rule 26(f) conference. The court may also mandate a shorter or longer time under Rule 29.
(b)(2)(B): Responding to Each Item
For each specific item or category, the response needs to state that either the inspection and related activities will be permitted as requested, or the grounds for objecting to the request as well as the reasoning behind that decision.
What’s more, responding parties can state that they will produce copies of the documents or of ESI, instead of permitting inspection. In this case, the production needs to be completed no later than the time of inspection specified in the request or by another reasonable time.
When objecting, it must state whether the party is withholding any responsive materials on the grounds of that objection. Further, an objection to part of a request needs to state which part and then permit inspection of the rest.
(b)(2)(D): Responding to a Request for Production of ESI
A response can state an objection to a requested form for producing ESI. Further, if the responding party objects to a requested form or if no form is specified in the request, the party has to state the form or forms that it intends to use.
(b)(2)(E): Producing the Documents or ESI
Unless otherwise stated or the court orders otherwise, these procedures apply to producing documents or ESI:
- A party must produce documents as they keep them in the usual course of business. Or, the party needs to organize and label them to correspond to the categories in the request.
- If a request doesn’t state a form for producing ESI, the party has to produce it in whatever form or forms in which it is typically maintained.
- A party doesn’t need to produce the same ESI in more than one form.
Rule 34(c): Nonparties
This part states that, as provided in Rule 45, courts can compel a nonparty to produce documents and tangible things or permit an inspection.
Venio’s Approach to eDiscovery
Venio recognizes that the Federal Rules of Civil Procedure are complex. They can be especially confusing for people who are new to the legal industry. And they can be complex for seasoned veterans, too.
Venio Systems simplifies eDiscovery management. This enables teams to spend more time responding to requests and building cases. At the same time, teams spend less time dealing with back-end ESI procurement and confusion.
By using Venio, legal teams can reduce risk, streamline eDiscovery, and reduce costs. In addition, Venio offers eDiscovery certification, providing education and product training for eDiscovery professionals. Sign up for the training and get up and running quickly with eDiscovery.
To learn more about the easiest way to comply with FRCP, request a demo of Venio 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.