E-discovery rule amendments adopted by Florida Supreme Court
This summer, the Supreme Court of Florida finally approved E-discovery rule amendments proposed by The Florida Bar’s Civil Procedure Rules Standing Committee. The new changes are entirely incorporated into existing rules and specifically include amendments to address Electronically Stored Information or ESI within Rules 1.200, 1.201, 1.280, 1.340, 1.350, 1.380 and 1.410 of the Florida Rules of Civil Procedure. These amendments are effective September 1, 2012.
The amended language generally comes from 2006 amendments to the Federal Rules of Civil Procedure to include ESI in possession of parties to litigation. This is important due to the the significant growth in the frequency with which litigants have since had to address issues related to the discoverability, retrieval, review, and production of ESI with which all practitioners and jurists should now become familiar. Additionally, issues involving information technology are no longer limited to complex or commercial litigation and are increasingly evident in the full range of civil cases that routinely involve electronic evidence.
Though tracking language already used in the federal rules, the drafters recognized that state court, with its greater diversity of litigation, is different than that in federal practice. Likewise, resources available to litigants are often different in state court cases than in federal litigation. As such, keeping discovery reasonable and cost-effective and preventing the cost and burden of electronic discovery from being outcome-determinative, is contemplated. For example, the mandatory “meet and confer” conference under Rule 26(f) of the federal system does not appear in the state rules.
However, case management topics under Rule 1.200, as well as Rule 1.201 involving complex litigation, now include the ability to address: the voluntary exchange of ESI and stipulations for authenticity; considering advance rulings from the court on admissibility; and discussing the possibility of agreements (including by referral to a special magistrate or to mediation) on preservation of evidence, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources. This should encourage early, meaningful communication and reasonable cooperation among parties in a desire to minimize the frequency with which disputes must be resolved by judicial intervention.
Other changes include limitations on discovering ESI under Rule 1.280, such as objecting to discovery from sources not reasonably accessible because of burden or cost. On a motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible. However, the court upon finding good cause may require and specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery.
In determining any motion involving discovery of ESI contemplated by Rule 1.280, the court must limit the frequency or extent of discovery if it determines: (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (2) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
In regard to interrogatories under Rule 1.340 and requests pursuant to rule 1.350, both are amended to allow for the production of ESI, either as an answer to an interrogatory or in response to a specific request for production. Both rules provide for a party to produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form.
Regarding discovery failures and sanctions, Rule 1.380 includes a safe harbor-- just as found in the federal rules-- such that absent exceptional circumstances, a court may not impose sanctions for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system.
Lastly, Rule 1.410 now authorizes subpoenas requesting ESI. A person receiving a subpoena may object to the discovery of the ESI, but must show that the information or the form requested is not reasonably accessible because of undue costs or burden. If such a showing is made, the court may nonetheless order the discovery if the requesting party shows good cause consistent with the limitations provided in rule 1.280 discussed above.