The Federal Rules of Civil Procedure (FRCP) play a key role in governing how district courts in the US operate.
Altogether, there are 11 titles and 86 rules in the FRCP. This post explores FRCP Rule 37 and how it pertains to the eDiscovery process. Keep reading to learn the basics of the rule to get the knowledge you need to ensure compliance.
A Quick Overview of eDiscovery
If you’re new to the term, eDiscovery refers to the part of the pretrial discovery process that has to do with the collection, analysis, securing, culling, and sharing of electronically stored information (ESI). In today’s digital age, ESI can include all sorts of things, including bills, documents, PowerPoint presentations, logs, chat transcripts, emails, audio files, and videos.
The point of eDiscovery is to ensure a fair and speedy trial by bringing the plaintiff and defense teams together ahead of time. That way, they can agree on how to share digital information and which files and documents need to be seen.
The FRCP: An Overview
For guidance throughout the eDiscovery process, legal teams should look to the FRCP.
Part of what makes the US federal court system so effective is uniformity and consistency. This stretches from the highest level at the Supreme Court all the way down to the local district courts.
Here’s a short history lesson: The federal court system wasn’t always organized and efficient. In fact, the system was highly fragmented. And many districts still had policies leftover from the British government’s court system. But that changed in the 20th century.
The system was in dire need of reform. As such, Congress enacted a series of reforms starting in 1872 with the Conformity Act. Next came the Rules Enabling Act of 1934. This law put the Supreme Court in charge of issuing general rules of practice and procedure, along with rules of evidence for cases in federal courts. In 1937, the Supreme Court then unveiled the FRCP.
The FRCP is still used today. The set of rules plays a critical role in governing the legal eDiscovery process. The FRCP has gone through several amendments since 1937 to reflect the changing needs of the legal landscape.
Rule 37 of the FRCP: An Overview
Of course, the FRCP doesn’t always go according to plan. This may be due to negligence, disorganization, or a general lack of cooperation.
As such, Rule 37 of the FRCP covers what can happen when a party fails to make disclosures or cooperate during the discovery process. Keep reading to also learn about some sanctions that can arise when parties fail to adhere to this rule.
Key Points of Rule 37
Here is a breakdown of the key points within Rule 37.
Rule 37 (a): Motion for an Order Compelling Disclosure or Discovery
Section (1) of Rule 37 (a) explains that a party can move for an order compelling disclosure of discovery. However, the motion must include a certification that the petitioner either “conferred or attempted to confer with the person or party failing to make disclosure or discovery” prior to asking for court action.
In addition, section (a)(2) states that a motion for an order to a party must occur in the court where the action is pending. In other words, it can’t take place across the country. The motion has to occur in the court where the discovery is occurring or will occur.
The rule then outlines procedures for specific motions while providing clarification for handling an evasive or incomplete disclosure. Section (a)(5) clarifies who should pay for the motion.
Rule 37 (b) Failure to Comply With a Court Order
Rule 37 sections (b)(1) and (2) explain sanctions in the district where the deposition happens and where the action is pending. It also provides clarification for sanctions when not producing a person for examination and for payment of expenses.
Rule 37(c): Failure to Disclose, to Supplement an Earlier Response, or to Admit
Rule 37(c) explains that should a party fail to provide information or identify a witness as required by Rule 26(a) or (e), the party can’t “use that witness or information to supply evidence on a motion, hearing, or trial” unless the failure can be considered justified or harmless.
What happens if a party fails to comply and provide requested information under Rule 36? The requesting party can move to make the party pay reasonable expenses, including attorney’s fees and other costs.
Rule 37(d): Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection
Rule 37(d) explains that a court where the action is pending may order sanctions if a party or party’s officer, director, or managing agent fails to appear for that person’s deposition after getting served with proper notice. The court may also take action if a party fails to respond to an interrogatory. Parties need to respond with answers, objections, or written responses.
This section also requires certification that the petitioner tries to confer with the party. Further, it also outlines unacceptable excuses for failing to act, as well as types of sanctions that may result from noncompliance.
Rule 37(e): Failure to Preserve Electronically Stored Information
Rule 37(e) explains that “if [ESI] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” the court can take several actions to remediate the situation.
For example, upon “finding prejudice to another party from loss of data,” the court “may order measures no greater than necessary to cure the prejudice.”
Or, only upon discovering that the party “acted with the intent to deprive another party of the information’s use” in a lawsuit, the court may “presume that the lost information was unfavorable to the party.” After that, they can “instruct the jury that it may or must presume that the information was unfavorable to the party.” They can also dismiss the action or enter a default judgment.
Rule 37(f): Failure to Participate in Framing a Discovery Plan
Rule 37(f) says that should a party or its attorney fail to participate in good faith when developing and submitting a discovery plan Rule 26(f) requires, the court can make the party or attorney pay the other party reasonable expenses and attorney’s fees.
Feeling Overwhelmed? Turn to Venio Systems
If you think this is a lot to keep track of, you’re absolutely right. The FRCP is a massive document, with many rules to follow. Unfortunately, failure to abide by the FRCP can result in sanctions and penalties, potentially leading to negative outcomes in court.
As such, legal teams need to strive to reduce complexity wherever possible. This is precisely where Venio Systems, a cloud eDiscovery provider offering the VenioOne platform, enters the equation.
VenioOne offers end-to-end eDiscovery management for an automated and agile approach to eDiscovery. Using the purpose-built VenioOne platform, teams can remain on schedule and have an easier time managing and responding to eDiscovery requests. VenioOne makes eDiscovery faster, less expensive, and less risky.
To learn more about the easiest way to accelerate your eDiscovery efforts while ensuring compliance, request a free trial 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.
