A lot has changed since the Federal Rules of Civil Procedure (FRCP) were first enacted in 1938. Yet the goals of discovery—and the Rules governing its conduct—remain as simple now as they were then. In a nutshell, parties should be able to identify, review, produce, and use relevant data to establish their claims and defenses during litigation and enable their opponents to do the same so that the deciding court hears a full and fair presentation of the issues. 

The Rules are outcome-oriented; they don’t care how litigants preserve or produce information, so long as they do. They don’t care where that information comes from or what device or application generates it. They only care that it’s ultimately available for use in litigation. 

In this sense, ediscovery isn’t so much a journey as it is a destination. If litigants arrive at the correct location, the FRCP aren’t concerned with what route they took to reach that point or what vehicle they traveled in. 

That's good for the FRCP's longevity and applicability through the dramatic waves of change since 1938. Because the Rules focus on the outcome—an exchange of relevant information between litigants—ediscovery can continually expand to accommodate new forms of data. 

Here’s how the Rules encompass current data sources in the digital age. 

What the Federal Rules of Civil Procedure Require for Ediscovery

Under FRCP 26(b)(1), as amended in 2015, discovery has a wide scope that includes “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case,” with proportionality determined by balancing six factors. Rule 26 further clarifies that information can be discoverable regardless of whether it is admissible as evidence. 

That scope speaks more to the content of discoverable information than its format. Indeed, it was only 16 years ago, in 2006, that the FRCP even contemplated the existence of digital data with the addition of “electronically stored information” or ESI. By then, companies had been using email—and squabbling over its role in ediscovery—for years, coming to a head with the Zubulake series of cases. 

Whatever the discoverable information format, parties must preserve it once litigation can be reasonably anticipated. Again, the preservation obligation isn’t concerned with what format evidence may be in or where it resides, only that it is kept safe from deletion or modification, otherwise known as spoliation. If parties allow evidence to be lost or changed, Rule 37(e) establishes the consequences for that failure. 

Beyond these broad guidelines, the Rules have little to say about how parties deal with the details of ediscovery. They do not, for example, prescribe specific locations or types of data that parties should examine beyond the broad inclusion of “electronically stored information.” Nor do they dictate the logistics of how parties should preserve, review, or produce relevant information. 

That’s by design because the ins and outs of discovery change too quickly for any rules to keep up. 

Where We Find New Sources of Discoverable Data

Today, potentially discoverable data can come from practically anywhere. Since the FRCP don’t direct litigants to specific sources, responding parties have the obligation to figure it out for themselves. What data is discoverable depends, of course, on the subject of a litigation matter—but in business, interactions with customers, vendors, suppliers, and employees could all lead to legal disputes. Therefore, any program, application, or device that supports those interactions could generate discoverable data. 

In practice, this means that whatever tools and platforms your employees use to do their work, the contents of these systems are likely to become a source of discoverable data. For example, the systems that employees use to: 

• track projects, 
• discuss each other’s work product, 
• resolve customer issues, 
• answer questions, 
• debug code, 
• report expenses, 
• share research, 
• negotiate contracts, 
• or do anything else for the business. 

These could include:

• traditional communication tools like email and text messages; 
• collaboration platforms like Slack or Microsoft Teams; 
• software-as-a-service (SaaS) applications like Jira, Trello, Monday, Asana—and more. 

The goal for managing ediscovery within all of those sources is the same. Companies need to search for data, export it in a reviewable format, produce that data to the requesting party, and use it themselves in court. 

But with new data sources come questions, such as: 

• How do you identify custodians for collaborative data shared between an entire project team?
• How do you scope discovery when custodians aren’t clear?
• Do you have access to data on a SaaS platform? Do you “own” that data? What happens if you stop paying to use a platform with discoverable data on it?
• Is an application’s data automatically preserved, or is it automatically deleted after a certain period? Can you influence either of those processes?
• How much data do you need to export and produce to discern the meaning of messages that are not self-contained but that depend on their context for interpretation?

In other words, the goals of discovery with new data sources may be straightforward, but the methods to achieve those goals are anything but simple. 

How the Federal Rules Apply to These New Data Sources

As far as the Federal Rules of Civil Procedure are concerned, digital information in discovery is just like any other information in discovery. These new digital data sources are covered by the FRCP the same way that email or traditional electronic documents are—if it’s relevant and proportional, the evidence must be preserved and produced. 

One important caveat: whether the discovery of evidence is proportional depends, in part, on how accessible that data is and how affordable it is to extract and produce. Parties sometimes fall back on proportionality as an excuse for why they cannot possibly be expected to produce data from a new source. This excuse grows thinner with each use, though. Courts are increasingly unwilling to let parties off the hook for preserving and producing data from new data sources. If your company uses an application or device that generates discoverable data, rest assured that you will have to figure out how to preserve that data. And sooner or later (probably sooner), you'll also have to produce it in discovery. 

Caveat aside, so long as you arrive at your destination—producing relevant and proportional data —the Rules don’t care whether you traveled to that destination in comfort or just barely made it, white-knuckling the whole way. 

But you, presumably, do care.

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