E-Discovery Rules Effective FL September 1st

The Supreme Court of Florida's opinion just out today adopts amendments to civil rules as previously outlined in my blog below. See full decision here: http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf
Six years in the making! Now begins the education campaign for bench and bar. Effective September 1, 2012 are amendments to seven existing Florida civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). This is the culmination of a six-year effort initially chaired by me and with the help of members of my subcommittee of lawyers and judges and the Civil Rules Standing Committee of the Florida Bar. These rules will further allow for the ability for neutrals to play a role in dispute resolution of ESI issues in state court cases. 

"This is the culmination of a rigorous effort to modernize procedure in Florida to include electronically stored information,” attorney Lawrence Kolin, of Winter Park, founding chair of the e-discovery rules committee, told told the Association of Certified E-Discovery Specialists®. See ACEDS Bulletin here - http://aceds.org/news/florida-ediscovery-rules-take-effect-september-1

Proposed amendment for taxation of ESI costs

The Florida Bar's Civil Procedure Rules Standing Committee is inviting comments on its proposed three-year cycle amendments to the Florida Rules of Civil Procedure. Included in these is an amendment to the Uniform Guidelines for the Taxation of Costs to include electronically stored information or ESI, as has been previously proposed and incorporated into existing language for purposes of bringing electronic discovery rules still absent in Florida's Rules of Civil Procedure.

Uniform Guidelines on Taxation of Costs

28-0-1

Adds provisions for taxation of costs for discovery of electronically stored information.

The number above signifies the vote of committee members. A full text of the proposals can be found on The Florida Bar’s website at www.FloridaBar.org. Interested persons have until August 1, 2012, to submit comments to the committee chair, Hon. Richard Nielsen, nielsera@fljud13.org and to the Bar staff liaison, Ellen Sloyer, at esloyer@flabar.org. See The Florida Bar News notice here: http://bit.ly/Lfxbv9

ACEDS 2012 and Florida's Forthcoming Rules

I spent the last couple of days at the national annual conference of the Association of Certified E-Discovery Specialists (ACEDS). There were many vendors, attorneys and even court personnel attending. Of particular interest was a pilot program developed by Clerk of the U.S. District Court for the Western District of Pennsylvania, Robert Barth. That court has identified special masters and e-neutrals as fulfilling the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (ESI) during the litigation process. The parties in those cases reportedly benefit from the appointment of Electronic Discovery Special Masters (EDSMs) in appropriate cases. Any findings of fact or conclusions of law reached by the EDSM will be presented to the court as a report and recommendation, to which the parties will have the opportunity to object, prior to a de novo review by the court (see details at - http://www.pawd.uscourts.gov/Pages/ediscovorey.htm).  Florida's draft rules do include a case management topic of optional appointment of special magistrates in the event such issues need to be referred.  This was discussed during an ACEDS panel I served on with my successor on the Florida Civil Rules Committee, Kevin Johnson. We also spoke on the likelihood of a decision from the Supreme Court of Florida concerning the proposed amendments to the Florida Rules of Civil Procedure and any time frame for implementation. Given the largely friendly reception during oral argument, it appears adoption of the language is imminent, but the forthcoming opinion could delay the effective date of the rules, given the Court's concern for educating the bench and bar.

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:
http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1542