[authors: Christian E. Dodd and Richard H. Martin]
On July 5, 2012, the Florida Supreme Court adopted amendments to the Florida Rules of Civil Procedure concerning the discovery of electronically stored information (ESI). The amendments - which should serve to provide trial courts and counsel a practical framework for addressing ESI discovery issues - track the manner in which ESI is currently addressed by the Federal Rules of Civil Procedure. Consequently, the amended Florida Rules will have a very familiar feel to parties accustomed to litigating in federal court. Parties who litigate predominantly in Florida state courts, and are not as familiar with federal civil procedure, will need to familiarize themselves with the amended Florida Rules. The following presents an overview of the amendments to the Florida Rules, which become effective on September 1, 2012, and suggested recommendations.
Rule 1.200 case management conferences are expanded to consider ESI issues. Courts may consider facilitating admissions of fact, voluntary exchange of ESI and stipulations as to authenticity. Courts may make advance rulings on admissibility of ESI. Most importantly, courts may facilitate agreements as to the scope of preservation, the form of production and limitations on the timing, scope and sources of ESI discovery.
For cases designated complex under Rule 1.201, the Parties' case management report must address agreements between the parties as to the scope of preservation, form of production and whether ESI discovery should be conducted in phases, or limited to particular individuals, time periods or sources.
Scope and Limitations Regarding Discovery
Rule 1.280(b) as amended, will make explicit that ESI is discoverable. However, Rule 1.280(d) will provide a framework for imposing limitations on ESI discovery similar to Federal Rule 26. ESI that is not reasonably accessible because of burden or costs is not discoverable absent a showing of good cause. If such discovery is ordered, the court has the authority to shift costs. The court must limit ESI discovery if it is unreasonably cumulative, duplicative, or may be obtained from another source or in a less costly or burdensome manner. These proportionality and reasonableness factors can significantly curtail abusive discovery practices.
Under certain circumstances a party may respond to an interrogatory by specifying records from which the answer to the interrogatory may be derived or ascertained and making the specified records available for inspection and copying to the requesting party. Under amended Rule 1.340(c), the records specified in such an interrogatory response may include ESI.
Requests for Production of Documents and Things
Amended Rule 1.350(b) allows a party requesting ESI to specify the form or forms in which it is to be produced. For example, a requesting party may specify that responsive MS Excel spreadsheets be produced as ".xls" files. If the responding party objects to the requested form of production, or if the requesting party does not specify a form, the responding party must state the form(s) it intends to use. In the above example, if the responding party objects to producing .xls files in their native file format (i.e. as .xls files), the responding party must state in its written objection to the request the form it will use when producing MS Excel spreadsheets, such as TIFF images or .pdf files.
Amended Rule 1.380 provides: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information as a result of the routine, good-faith operation of an electronic information system." As this language mirrors the corresponding Federal Rule, Florida courts likely will look to federal case law for guidance. The Committee Notes explain that the good-faith requirement of Rule 1.380(e) should prevent a party from exploiting the routine operation of an information system to thwart its discovery obligations by allowing that routine operation to destroy information the party is required to preserve or produce.
Rule 1.410(c) addresses subpoenas for the production of documentary evidence. The amendment to Rule 1.410(c) closely tracks the amended Rule 1.280(d) discussed above. A party responding to a subpoena may object to the discovery of ESI from sources identified as not reasonably accessible: on a motion to compel discovery or to quash the subpoena, the responding party bears the burden of showing that the information sought, or form of production requested, is not reasonably accessible. Even if that showing is made, the court may order the discovery from the identified sources, or in the requested forms, if the requesting party shows good cause, and considering the limitations set out in Rule 1.280(d)(2). The court may order that some or all of the costs be shifted to requesting party.
Form of Production
The amended rules provide that where a document request does not specify the form of production of ESI, or ESI is produced in response to an interrogatory (in lieu of a written response), the responding party must produce the ESI in a form or forms in which it is ordinary maintained or in a reasonably usable form. See Amended Rules 1.340(c), 1.350(b) and 1.280(d)(2). These rules discourage litigants from producing ESI in a format that renders them difficult to utilize (e.g., converting lengthy spreadsheets to non-searchable TIFF images).
Many of our clients are implementing litigation hold procedures and standardized protocols so they can consistently advise their outside counsel on their organization's position in responding to requests for electronic discovery. Akerman has qualified lawyers who can assist you in developing these procedures to avoid undue burdens being placed upon your organization.