Saturday, June 15, 2013

ESI as Taxable Cost in Florida?

The Florida Bar's Civil Procedure Rules Standing Committee has responded to comments on its proposed three-year cycle amendments to the Florida Rules of Civil Procedure. Included in these is an amendment to the Statewide Uniform Guidelines for the Taxation of Costs to include electronically stored information or ESI, as has been previously incorporated into existing language in Florida's Rules of Civil Procedure. In federal court, prevailing litigants can seek reimbursement of certain e-discovery expenses as taxable costs under Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920(4). Litigants taxing e-discovery costs have done so with some success. Fed. R. Civ. P. 54(d)(1) allows prevailing parties to recover certain costs and expenses incurred during litigation. Under Rule 54, if a substantiated bill of costs is sent to the clerk, there is a presumption that recovery is proper. However, courts still maintain discretion to reduce any award.  Federal case law suggests 28 U.S.C. § 1920(4) should be used to allow a party to shift the entirety of the costs associate with e-discovery. Last year, Florida's out-of-cycle amendments to the Rules of Civil Procedure regarding discovery of electronically stored information (ESI) went into effect. See In re: Amendments to the Florida Rules of Civil Procedure – Electronic Discovery, 95 So. 3d 76 (Fla. 2012). During the development of our rule changes, my subcommittee on e-discovery rules discussed the subjects of cost-shifting and taxation of costs for production of ESI. Among the considerations were whether the amendments should also contain changes to the Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions. The Florida Supreme Court has previously directed that the Uniform Guidelines be reviewed periodically by the Civil Rules Committee for future revision as needed to improve the ability of trial judges to administer taxing of costs. They also announced a recent policy of discouraging excessive e-discovery and preventing the inclusion of unnecessary ESI in court files. See In re Amendments to Fla. Rule of Judicial Admin. 2.420, 31 So. 3d 756 (Fla. 2011).  No opinion on the latest changes has been released. See additional proposed amendments here: