Friday, March 23, 2012

I'll be speaking at the Association of Certified E-Discovery Specialists

Join me at ACEDS 2012 Annual Conference and Exhibition
(I'll be speaking April 3rd).
4:40 PM - 5:50 PM Session: You can’t spell Sunshine without ‘ESI’: What you should expect under the new Florida e-discovery state rules

Florida will soon have e-discovery rules for its state courts for the first time. The product of a long process led by the Florida Bar, which elicited the views of urban and rural practitioners and judges throughout the very diverse state, the proposed rules are not mirror images of the federal e-discovery rules. They are a sea change in Florida legal procedure. Florida’s 63,000 practicing attorneys, their litigation support and IT staffs, as well as their clients, will be challenged. Most of them are unfamiliar with e-discovery and the duties it entails. What do the proposed Florida state rules require? How do they differ from the Federal e-discovery rules? When are they likely to be approved by the Florida Supreme Court? How should Florida lawyers prepare to handle them well? What penalties are they likely to face for mishandling electronically stored information, and how do you avoid them? In this special panel, experts from around the state, including the lawyer who chaired the Florida Bar rules committee, will show you what you must do to prepare and to implement them when they arrive. This is a vital panel for all Florida legal practitioners and their staffs and for the service providers that do business in the Sunshine State.

Monday-Wednesday, April 2-4, 2012
The Westin Diplomat | Hollywood, Florida USA
Speaker Courtesy Savings Voucher From Lawrence H. Kolin
Save $150 if you use Code "Kolin"
Priceless Knowledge and Networking, Plus Up to 17 CLE Credits
Phone: 786-517-2701

Wednesday, March 7, 2012

Supreme Court of Florida Considers E-Discovery Rules

This morning, the Supreme Court of Florida heard oral argument in case SC11-1542 on the amendments to the Florida Rules of Civil Procedure concerning E-Discovery. The proposed amendments add electronically stored information or ESI into existing rules and are mostly modeled on the federal rule changes implemented by Congress in 2006. Following a multi-year effort by the Civil Procedure Rules Subcommittee on E-Discovery that I formed in January 2006, these rules were presented to the Florida Bar Board of Governors and sent on to the court for comment and adoption.

Justice Barbara Pariente, with her iPad prominently displayed on the bench, began to pepper Chair, Kevin Johnson (whom I tapped as my successor upon my terming off the Civil Rules standing committee) shortly after he began. She engaged in congratulating the seemingly unanimous approval by the members of the Bar in the run-up to making these rules official.

Justice Pariente continued with questions regarding her experience as a litigator in producing documents in products cases. Mr. Johnson explained that the only difference from the federal rules is the lack of a mandatory meet and confer early in the case. However, there is an available category found in the state case management rules 1.200 and 1.201.

Justice Quince was concerned over the format of production of the items requested by a litigant and that those decisions are left to the trial judge. Justice Perry was concerned about the party having the best expert to hide the ball with an inexperienced line judge.

Doug Caldwell of the Rumberger firm appeared to applaud the effort, but on behalf of the Florida Defense Lawyers, did not feel the federal rules go far enough. He cited efforts in the federal rules advisory committee to remedy the inefficiencies experienced in that system. Mr. Caldwell echoed Henry Trawick’s comments filed about the burden on the producing party. His anecdote of a ‘mom and pop’ store with an iPhone was met with skepticism from Justice Pariente. Justice Polston pointed out the existing rules allow for trial judges to argue scope in 1.280.

Retired Circuit Judge Ralph Artigliere, with whom I’ve taught at OSCA’s Florida Judicial College, commented on preservation and the existing case law for spoliation that developed out of products and malpractice cases. He added that Business Courts can make local rules more specific to manner of production. He also mentioned the change in culture reflecting a burden on lawyers to understand the evidence their clients may have and responsibility to the court, Education of the bench and bar was discussed and Justice Lewis went as far as talking about mandatory court education or bar CLE to be coordinated by the budget-less Civil Rules committee.

Not a clue as to the timing of implementation of these rule amendments was given during the thirty-seven minute argument, though I liked Justice Pariente's emphasis on wide agreement of committee and bar to pass the new rules. Fingers crossed!

See oral argument at: