Florida Civil Procedure E-Discovery rules for state court were discussed at the 2010 Florida Bar Annual Meeting and at the Florida Bar Business Law Section (BLS) annual retreat.
The Civil Rules E-Discovery subcommittee continues to liaise with the BLS group to harmonize draft language with the current federal rules in order to better take advantage of the developing body of case law in that area since 2006.
The Computer and Technology Law Committee of the BLS has approved proposed changes made by its own e-discovery subcommittee, but awaits approval from the Intellectual Property and Business Litigation Committees. The final recommendations will go to the BLS Executive Council for approval in 2011. BLS will then make its formal recommendations to the full Civil Rules Standing Committee.
The proposed amendments are to Rules 1.200, 1.280, 1.350 and 1.410 of the Florida Rules of Civil Procedure. There was also a draft form litigation hold letter 1.9XX [proposed as a baseline pre-suit request] which was ultimately not addressed.
Civil Rules has already approved in concept those changes found in its June 2010 report for Rule 1.200. The change mirrors the complex litigation Rule 1.201 language implemented by the Florida Supreme Court in 2009, in order to include ESI as a topic of discussion at Case Management (the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence).
Of particular significance, consistent with other states adopting areas of federal rule concepts into state practice, the full Civil Rules committee has consistently refused to endorse a mandatory meet and confer à la federal Rule 26 for state practitioners. See the June 2010 report on the Florida Bar's website under Civil Rules Standing Committee for a history of the process to date, including reference to complex litigation division / business court rules already in effect in Tampa.
Without Supreme Court of Florida intervention, the next available regular rule cycle change for Civil Rules in Florida is not until 2013.
Wednesday, November 17, 2010
Tuesday, June 22, 2010
Civil rules panel to discuss e-discovery at convention
E-discovery rules are being proposed to the full Civil Procedure standing committee at the Bar’s Annual Convention in Boca Raton.
Lawrence Kolin, who currently chairs the Civil Procedure Rules Subcommittee on Electronic Discovery, said his group has put forth language to be incorporated in several existing rules to address electronically stored information or “ESI.” If favorably considered, the changes will proceed to the drafting subcommittee.
Kolin said the panel has conducted multiple interim meetings since its formation, consisting of attorneys in diverse areas of practice, government attorneys, and the judiciary, began studying the federal rules amendments four years ago.
Kolin said just over half of the nation’s states have created their own e-discovery rules.
“Our rules are construed to secure the just, speedy, and inexpensive determination of every civil action, which is why this effort is necessary,” Kolin said.
“Those states that have recognized growing reliance by parties on the creation and storage of digital information potentially relevant to legal disputes, frequently resulting in costly and time-consuming efforts to identify, preserve, and produce electronic records, have passed rules,” Kolin said. “With nearly six terabytes of information being exchanged over the Internet every second, it is time for Florida to get on board with civil rules governing discovery of this electronic data.”
Moreover, Kolin said his subcommittee had found the traditional adversarial approach to civil discovery only tends to foster additional delay and motion practice where ESI is concerned, while the merits of the case are sometimes ignored.
“These issues 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,” Kolin said.
In seeking to encourage self-determination and have parties work through anticipated issues before judicial intervention whenever possible, Kolin said the subcommittee incentivized early “meet and confer” behavior without actually making it mandatory under case management — something a unanimous straw poll taken at the Midyear Meeting revealed would never pass.
Kolin believes the rule language takes into consideration the burden and cost of discovery in litigation, which has become exorbitant in some instances.
“We have tried to account for the very real difference in state and federal practice culture, while incorporating key concepts in this area which are likely to become black-letter law,” Kolin said. “There is no one-size-fits-all e-discovery rule.”
Commenting on a recent federal court pilot program on electronic discovery in the Seventh Circuit, Kolin said having a set of fair-play rules at the outset of a case was shown to quell pretrial battles between parties. The goal there was to find ways to reduce costs and burdens of electronic discovery which have largely occurred.
“When judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process for litigants,” he said. “Continuing education of the bench and bar on principles of duty to preserve, cost-shifting, and proportionality will also aid resolution of cases on the claims actually at issue.”
Lawrence Kolin, who currently chairs the Civil Procedure Rules Subcommittee on Electronic Discovery, said his group has put forth language to be incorporated in several existing rules to address electronically stored information or “ESI.” If favorably considered, the changes will proceed to the drafting subcommittee.
Kolin said just over half of the nation’s states have created their own e-discovery rules.
“Our rules are construed to secure the just, speedy, and inexpensive determination of every civil action, which is why this effort is necessary,” Kolin said.
“Those states that have recognized growing reliance by parties on the creation and storage of digital information potentially relevant to legal disputes, frequently resulting in costly and time-consuming efforts to identify, preserve, and produce electronic records, have passed rules,” Kolin said. “With nearly six terabytes of information being exchanged over the Internet every second, it is time for Florida to get on board with civil rules governing discovery of this electronic data.”
Moreover, Kolin said his subcommittee had found the traditional adversarial approach to civil discovery only tends to foster additional delay and motion practice where ESI is concerned, while the merits of the case are sometimes ignored.
“These issues 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,” Kolin said.
In seeking to encourage self-determination and have parties work through anticipated issues before judicial intervention whenever possible, Kolin said the subcommittee incentivized early “meet and confer” behavior without actually making it mandatory under case management — something a unanimous straw poll taken at the Midyear Meeting revealed would never pass.
Kolin believes the rule language takes into consideration the burden and cost of discovery in litigation, which has become exorbitant in some instances.
“We have tried to account for the very real difference in state and federal practice culture, while incorporating key concepts in this area which are likely to become black-letter law,” Kolin said. “There is no one-size-fits-all e-discovery rule.”
Commenting on a recent federal court pilot program on electronic discovery in the Seventh Circuit, Kolin said having a set of fair-play rules at the outset of a case was shown to quell pretrial battles between parties. The goal there was to find ways to reduce costs and burdens of electronic discovery which have largely occurred.
“When judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process for litigants,” he said. “Continuing education of the bench and bar on principles of duty to preserve, cost-shifting, and proportionality will also aid resolution of cases on the claims actually at issue.”
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