ESI Rules in effect for AAA Complex Commercial Disputes

New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. These new rules should better equip Arbitrators to control modern discovery and the costs associated with the advent of electronic discovery.  See AAA rule changes here-- http://go.adr.org/LP=307 and a summary http://bit.ly/16z6r3i

E-discovery rules for Florida approved by Bar; next headed to Supreme Court

This summer, The Florida Bar Civil Rules committee finally approved draft rule amendments of its longstanding E-Discovery subcommittee. The Florida Bar Board of Governors recently gave its unanimous blessing to the Expedited Submission of Proposed Amendments to Address Discovery of Electronically Stored Information. These new rules are likely to be submitted to the Supreme Court of Florida off-cycle and soon published for comment.

Following Congress’s 2006 amendments to the Federal Rules of Civil Procedure, which coincide with increasing reliance in modern communication on email, documents, and electronic information residing in computers, storage devices, handhelds, and smartphones, it was decided that the Florida Rules of Civil Procedure also needed to be updated. Likewise, exponential growth in the volume of Electronically Stored Information (ESI) in possession of parties to litigation, and the significant growth in the frequency with which litigants and courts have since had to address issues related to the discoverability, retrieval, review, and production of ESI, also brought about these changes, with which all practitioners should now become familiar.

After studying the rules enacted in just over half of the states in this country with the intention of facilitating the development of proposed changes to Florida's Rules, the subcommittee adopted core principles that provided predictability by tracking language used in the federal rules so that existing precedents might be applied. Of course, this was done recognizing that the culture in state courts, with its greater variety of litigation, is different than that in federal practice. Also, issues involving information technology are no longer limited to complex or commercial litigation; they are increasingly evident in the full range of civil cases that routinely involve electronic evidence.

Additionally, resources available to litigants are often different in state court cases than in federal litigation. As such, keeping discovery reasonable and cost-effective, and preventing the cost and burden of electronic discovery from being outcome-determinative rather than based on the merits (or at least from being unduly favorable to either requesting or responding parties), was considered.

It should be noted that while encouraging early, meaningful, and reasonable cooperation and communication among parties in a desire to minimize the frequency with which disputes must be resolved by the courts, the mandatory “meet and confer” of the federal system seemed impracticable to the full standing committee, which overwhelmingly voted against imposing such requirements in the state rules.

Changes are entirely incorporated into existing rules and specifically include amendments to address ESI within Rules 1.200, 1.201, 1.280, 1.340, 1.350, 1.380 and 1.410 of the Florida Rules of Civil Procedure.

For example, case management in Rule 1.200, as well as Rule 1.201 involving complex litigation, will now include the ability to address topics such as: considering the voluntary exchange of ESI and stipulations for authenticity; considering the need for advance rulings from the court on admissibility; and discussing the possibility of agreements (whether by parties or by referral to a special magistrate, master, other neutral or mediation) on preservation of evidence, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources.

Other changes include limitations on discovering ESI under Rule 1.280, such as objecting to discovery from sources not reasonably accessible because of burden or cost. On a motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible. However, the court, upon finding good cause, may require and specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery.

In determining any motion involving discovery of ESI contemplated by Rule 1.280, the court must limit the frequency or extent of discovery if it determines: (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (2) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

State practitioners will be glad to know that Rule 1.380 includes a safe harbor, just as in the federal rules, such that absent exceptional circumstances, a court may not impose sanctions for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system.

These amendments were the result of much debate among attorneys in diverse areas of practice, and members of the judiciary and thorough study of the application of the federal rules amendments in this area since their passage. The hope is that parties will seek to work though anticipated issues before judicial intervention, whenever possible, but that the guidance of developing federal case law in this area of ESI will be instructive, as few reported Florida cases exist.

Florida Civil Procedure E-Discovery rules still in the works

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.