The Florida Supreme Court has approved
procedural rule amendments governing the discovery and production of
electronically stored information (ESI) in civil cases.
“This is the culmination of a six-year effort of the Civil Procedure
Rules Committee to bring forth modernization of the procedure in Florida
in keeping with federal trends for the inclusion of ESI,” said Winter
Park attorney Lawrence Kolin, the first chair of the rules committee’s
E-Discovery Subcommittee. “I am proud of our ability to utilize
amendments to existing rules and to respect the differences in state
practice regarding this realm. We now must be sure to educate bench and
Bar on this momentous change in Florida civil procedure.”
The court accepted the committee’s proposed changes to seven procedural rules.
Rules 1.200 (Pretrial Procedure) and 1.201 (Complex Litigation) were amended to address electronic discovery as part of the pretrial procedures, including the possible need for rulings on electronic evidence and “the possibility of an agreement between the parties regarding the extent to which such information should be preserved and the form in which it should be produced,” the opinion said.
Rule 1.280 was amended to specifically allow for discovery of ESI and also set some limitations on such discovery.
It also spells out procedures for the recipient of a discovery request to object to that action if it will cause an undue burden or cost too much.
The court may still grant the request, if the requesting party shows good cause, although some or all of the discovery costs may be imposed on that party.
Another new subdivision of that rule limits electronic discovery if it becomes duplicative or the information can be obtained from another source that is less burdensome or less costly, or if the trouble of producing the information likely outweighs any expected benefit.
Rule 1.340 (Interrogatories to Parties) and Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) were amended to allow for producing ESI in response to an interrogatory or specific request.
“Both rules provide for a party to produce the ESI in the form in which it is ordinarily maintained in or in a reasonably usable form,” the opinion said.
Rule 1.380 (Failure to Make Discovery, Sanctions) was amended to remove the possibility of sanctions, except in exceptional circumstances, if ESI was lost “as a result of the routine, good-faith operation of an electronic information system.”
Rule 1.410 (Subpoena) was amended to allow for subpoenaing electronic records and providing a procedure and grounds for the subpoena recipient to object.
The new rules are effective September 1.
The court acted July 5 in case no. SC11-1542, In Re: Amendments to the Florida Rules of Civil Procedure – Electronic Discovery.
The court accepted the committee’s proposed changes to seven procedural rules.
Rules 1.200 (Pretrial Procedure) and 1.201 (Complex Litigation) were amended to address electronic discovery as part of the pretrial procedures, including the possible need for rulings on electronic evidence and “the possibility of an agreement between the parties regarding the extent to which such information should be preserved and the form in which it should be produced,” the opinion said.
Rule 1.280 was amended to specifically allow for discovery of ESI and also set some limitations on such discovery.
It also spells out procedures for the recipient of a discovery request to object to that action if it will cause an undue burden or cost too much.
The court may still grant the request, if the requesting party shows good cause, although some or all of the discovery costs may be imposed on that party.
Another new subdivision of that rule limits electronic discovery if it becomes duplicative or the information can be obtained from another source that is less burdensome or less costly, or if the trouble of producing the information likely outweighs any expected benefit.
Rule 1.340 (Interrogatories to Parties) and Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) were amended to allow for producing ESI in response to an interrogatory or specific request.
“Both rules provide for a party to produce the ESI in the form in which it is ordinarily maintained in or in a reasonably usable form,” the opinion said.
Rule 1.380 (Failure to Make Discovery, Sanctions) was amended to remove the possibility of sanctions, except in exceptional circumstances, if ESI was lost “as a result of the routine, good-faith operation of an electronic information system.”
Rule 1.410 (Subpoena) was amended to allow for subpoenaing electronic records and providing a procedure and grounds for the subpoena recipient to object.
The new rules are effective September 1.
The court acted July 5 in case no. SC11-1542, In Re: Amendments to the Florida Rules of Civil Procedure – Electronic Discovery.
