Florida adopts first-ever e-discovery rules for state courts, to take effect September 1

The following was provided to me by Association of E-Discovery Specialists (I am a charter member). So I passing along the information. 

The Florida Supreme Court today advised the state’s 93,000 lawyers and, indirectly, their widely diverse and international clientele, that starting September 1 there will be a dramatic change in the way evidence is gathered, produced and handled in the hundreds of state courts that dot the Sunshine State.

Giving the legal community just 57 days from its July 5 ruling to prepare for the significantly different ways the new state rules of civil procedure apply to electronically stored information, as opposed to the bygone days of paper records, the action of the high court in the nation's fourth largest state will cause a sea change in state legal procedures.

The new Florida rules do not mirror the federal counterparts, which are now nearly 6 years old, and found primarily at Rules 26 and 37 of the Federal Rules of Civil Procedure. They instead instead accommodate some of the objections that were voiced by Florida practitioners in some of the less-urban parts of the state.

No mandatory ‘meet and confer’
One significant difference is the absence of the mandatory federal requirement that lawyers "meet and confer" at the beginning of litigation to attempt to iron out discovery issues and disputes, which is the centerpiece of federal Rule 26(f). The new Florida rules make this conference optional.

Thirty-six states have amended their rules of civil procedure to account for the exchange of electronically stored information (ESI), but few as diverse as Florida. It is home to many affiliates of the Fortune 1000 companies and big law firms, but also counts among its residents many lawyers in rural areas who practice law the same way it was done decades ago.

The new Florida rules were put on "fast-track" by the Supreme Court in June 2011. The court heard oral argument on the rules in March 2012.

No excuse for ignorance, says chair of committee that drafted rule
“The Supreme Court has just brought Florida’s rules into the 21st century,” Tampa attorney Kevin Johnson, who chaired the committee that crafted the rules, told ACEDS. “Florida trial lawyers now have no excuse for remaining ignorant about e-discovery.”

The Supreme Court adopted the rules exactly as they were approved and presented by the Florida Bar e-discovery rules standing committee in June 2011. The new rules had incubated for six years as the committee solicited suggestions and comments from state judges and practitioners and observed the impact of federal rules on US courts.

The new rules seek to promote cooperation between parties, guide judges to handle abusive discovery practices, and speed discovery in county and civil courts that saw 2.5 million cases filed in 2011.

"This is the culmination of a rigorous effort to modernize procedure in Florida to include electronically stored information,” attorney Lawrence Kolin, of Winter Park, a former chair of the e-discovery rules committee, told ACEDS. 

Highlights of new Florida rules
The new rules, in general:  

• expressly authorize discovery of ESI,

• allow a party to object to a discovery request for ESI,

• require the producing party on a motion to compel discovery to show why the ESI sought is not reasonably accessible because of undue burden or costs,

• allow the court to overrule objections of the producing party,

• allow a judge to allocate e-discovery costs,

• authorize a subpoena requesting ESI, and allow the recipient of a subpoena to object on grounds the ESI is not reasonably accessible.  

In cases designated as “complex litigation,” the new rules require parties to propose agreements on the extent to which electronic information should be preserved and the form in which it should be produced.

The rules, which do not apply to criminal cases, also stipulate that a judge must limit the discovery that is sought if it is “unreasonably cumulative or duplicative, or can be obtained from another source or in another manner… more convenient, less burdensome, or less expensive,” or if the burden or expense of the discovery likely outweighs its benefits.

The e-discovery rules give cover to persons who fail to provide electronic evidence because it has been destroyed as the result of a routine, good faith operation of an electronic information system. A court may not impose sanctions in these instances, they state. The rules do not otherwise address preservation of electronic evidence, which the committee said was better left to statutes and case law.

Rules spotlight lawyer and judicial knowledge gap
The new rules put a premium on training lawyers and judges to handle ESI and navigate their provisions. ESI is no longer a random phenomenon in legal cases. It is a large, ongoing part of most of them. The rules also aim to instill uniformity in a high risk, high cost area of litigation for which there are no state precedents.

Petitioners and the court’s members aired the issue of mandatory education in the oral argument in March. Justice James E. C. Perry warned that parties who are versed in e-discovery may take advantage of those who are not. He said judges “aren’t experts” and voiced concerns that litigants could “hide the ball” against inexperienced adversaries. 

Rules put onus on attorney and judges to learn e-discovery
Johnson, the former committee chair who is a shareholder at Thompson, Sizemore, Gonzalez & Hearing, told the court it would “help a lot to have basic education.” The size and diversity of the state bar and judicial population are a hurdle to comprehensive, live training offerings. Federal precedents may serve as the source of the first lessons for many Florida lawyers and judges.

Unlike their federal counterparts, which have mandatory sanctions provisions, the amendments are silent on sanctions. However, other Florida rules of procedure give judges the right to punish discovery violations, including transgressions under these new rules.

“A trial lawyer who refuses to investigate what ESI is and how it can impact his case is like a family doctor who refuses to admit that HIV exists and that it might harm his patient,” Johnson tells ACEDS.  “The rules are designed to make dealing with e-discovery easier, but lawyers and courts must educate themselves on the basics if they hope to use them effectively.”

Alvin Lindsay, partner at Hogan Lovells, in Miami, similarly says, “Lawyers in Florida can no longer hide from electronic discovery. They are now expected to know, understand and abide by these rules.”  (Lindsay is Chairman of the ACEDS Advisory Board.)

One e-discovery segment not unhappy with the momentous development in Tallahassee today is the large national population of e-discovery service providers and vendors. To them, the new rules will be a boon.

Association of E-Discovery Specialists