One week until Oral Argument on FL E-Discovery Rules

The Supreme Court of Florida, which has the final say on state civil procedure rules, will hear oral argument next week, on March 7, 2012, in Tallahassee. No date has been set for when the rules would become effective. The proposed rules are a compromise between the views of urban lawyers, who urged adoption, and those in rural areas who see no need for change in the existing rules of civil procedure.

“Small firms and solo practitioners think these rules are for the big firms and big cases, but it will affect everyone,” says attorney Lawrence Kolin, of Winter Park, who chaired the e-discovery rules subcommittee before Johnson.

A learning curve will impact the state’s 93,000 licensed attorneys, of which 63,000 actively practice law, especially those unfamiliar with e-discovery. They stress a proactive approach to discovery and allow the parties to request a non-mandatory early case management conference.

The federal rules and court decisions addressing e-discovery can guide the state’s lawyers and judges as they begin to walk through the risky, expensive issues that electronic evidence entails. Except for the case management conference, which Federal Rule of Civil Procedure requires at 26(f), the proposed Florida rules track their federal counterparts in large measure. The new rules do provide for a state court case management discussion on ESI under Rule 1.200.

Big law and big business is counterbalanced by a large and diverse community of small firms and sole practitioners, many in rural area where law is practiced as it was decades ago. This complexion factored in the final content of the rules and the discussions surrounding them.

“The question I heard most is ‘where is this stuff on the bar exam?’” Kolin says, noting that small firms and practitioners were the most vociferous opponents.

See full ACEDS article here:

http://aceds.org/news/florida-supreme-court-fast-tracks-first-florida-e-discovery-state-rules-sets-hearing-march-7

E-discovery rules for Florida approved in concept

This month the Florida Bar Civil Rules standing committee finally passed the draft rules of its subcommittee in concept which will be sent to drafting for clean up and likely a vote for passage in final next summer! Here are some excerpts of the subcommittee's report and a chart showing what state rules will be changed and how they relate to their federal counterparts:

The subcommittee believes that the increasing reliance of modern communication and information storage on computers, e-mail, hand-held devices, and various forms of electronic documentation requires the Rules of Civil Procedure to be updated.

The subcommittee observes that there has been exponential growth in the volume of electronically-stored information that is held by parties to litigation, and believes that there has likewise been significant growth in the frequency with which litigants and courts have had to address issues related to the discoverability, retrieval, review, and production of electronically-stored information.

In developing these proposed changes, the subcommittee attempted to balance the
following core principles:

Enhancing predictability by tracking language and principles used in the
federal rules to the maximum extent possible so that existing precedents
can be applied by courts and parties;

Recognizing that procedure in state courts is nonetheless different than
practice in federal courts in significant ways, and that state rules must be
adapted to the greater variety of litigation found in state court;
Recognizing that the resources available to litigants or courts may be
different in state-court litigation than federal litigation;
Keeping discovery reasonable and cost-effective; preventing the cost and
burden of electronic discovery from being outcome-determinative;
Encouraging early, meaningful, and reasonable cooperation and
communication among parties to minimize the frequency with which
disputes must be resolved by the courts;
Avoiding alteration of existing precedents so that changes remain
procedural and not substantive; and
Avoiding unduly favoring either requesting parties or responding parties.

Federal Florida Subject

16(b) 1.200 Scheduling

26(b) 1.280 Scope

34 1.350 Requests

37 1.380 Sanctions

45 1.410 Subpoenas

Civil rules panel to discuss e-discovery at convention

E-discovery rules are being proposed to the full Civil Procedure standing committee at the Bar’s Annual Convention in Boca Raton.

Lawrence Kolin, who currently chairs the Civil Procedure Rules Subcommittee on Electronic Discovery, said his group has put forth language to be incorporated in several existing rules to address electronically stored information or “ESI.” If favorably considered, the changes will proceed to the drafting subcommittee.

Kolin said the panel has conducted multiple interim meetings since its formation, consisting of attorneys in diverse areas of practice, government attorneys, and the judiciary, began studying the federal rules amendments four years ago.

Kolin said just over half of the nation’s states have created their own e-discovery rules.

“Our rules are construed to secure the just, speedy, and inexpensive determination of every civil action, which is why this effort is necessary,” Kolin said.

“Those states that have recognized growing reliance by parties on the creation and storage of digital information potentially relevant to legal disputes, frequently resulting in costly and time-consuming efforts to identify, preserve, and produce electronic records, have passed rules,” Kolin said. “With nearly six terabytes of information being exchanged over the Internet every second, it is time for Florida to get on board with civil rules governing discovery of this electronic data.”

Moreover, Kolin said his subcommittee had found the traditional adversarial approach to civil discovery only tends to foster additional delay and motion practice where ESI is concerned, while the merits of the case are sometimes ignored.

“These issues are no longer limited to complex or commercial litigation and are increasingly evident in the full range of civil cases that routinely involve electronic evidence,” Kolin said.

In seeking to encourage self-determination and have parties work through anticipated issues before judicial intervention whenever possible, Kolin said the subcommittee incentivized early “meet and confer” behavior without actually making it mandatory under case management — something a unanimous straw poll taken at the Midyear Meeting revealed would never pass.

Kolin believes the rule language takes into consideration the burden and cost of discovery in litigation, which has become exorbitant in some instances.

“We have tried to account for the very real difference in state and federal practice culture, while incorporating key concepts in this area which are likely to become black-letter law,” Kolin said. “There is no one-size-fits-all e-discovery rule.”

Commenting on a recent federal court pilot program on electronic discovery in the Seventh Circuit, Kolin said having a set of fair-play rules at the outset of a case was shown to quell pretrial battles between parties. The goal there was to find ways to reduce costs and burdens of electronic discovery which have largely occurred.

“When judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process for litigants,” he said. “Continuing education of the bench and bar on principles of duty to preserve, cost-shifting, and proportionality will also aid resolution of cases on the claims actually at issue.”

E-discovery group to introduce rule language in 2010

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/a1e3d02cfe3823df852576620070b746!OpenDocument

E-discovery rules for Florida are expected to be proposed next year, according to Lawrence Kolin, who chairs the Civil Procedure Rules Subcommittee on Electronic Discovery.

Kolin’s group, consisting of attorneys in diverse areas of practice and members of the judiciary, has been studying the application of the federal rules amendments in this area since their passage.

“Recognizing the strain on resources, we want to incentivize the parties to work though anticipated issues before judicial intervention, whenever possible,” said Kolin of Orlando.

Kolin points to the rising burden and cost of discovery in litigation which has resulted in such efforts as the U.S. Court of Appeals for the Seventh Circuit initiating a pilot program to encourage early and informal information exchange on commonly encountered issues.

“Surprisingly, of the states that have adopted statewide procedural rules largely based on federal language, only a minority has made mandatory the ‘meet and confer’ provisions — perhaps in deference to the stark difference in state and federal practice culture,” said Kolin, adding the discussion over a one-size-fits-all e-discovery rules approach continues.

As an interim step, Kolin said the subcommittee worked with Orange County Bar members, The Florida Bar Business Law Section, and experts in the area, including Ralph Losey and William Hamilton, who teach a law school course in the subject, to create local case management rules.

Kolin said those rules have begun to roll out in the “business courts” or complex business litigation divisions of the state, beginning with the 13th Circuit last summer. Judge Richard Nielsen, who presides over that division, has indicated that most of the cases involving electronically stored information (ESI) have sophisticated businesses as parties and attorneys accustomed to the use of technology and the concepts of preservation and proportionality, according to Kolin.

Kolin recently met with Orlando business court Judges Frederick Lauten and Thomas Smith who he says are in favor of adopting similar language and will be approaching Chief Judge Belvin Perry about a Ninth Judicial Circuit administrative order. He has also contacted 11th Circuit Judge Gill Freeman and General Magistrate Elizabeth Schwabedissen, as well as Judges Jeffrey Streitfeld and Charles Greene in the 17th Circuit, regarding adopting case management rules for ESI in advance of statewide rules.

The subcommittee is also working with members of the joint committee of the Trial Lawyers Section and the conferences of the circuit and county courts judges to include the topic of e-discovery in the next Handbook on Discovery Practice.

Kolin continues to encourage members of the bench and Bar to contact his subcommittee with comments and experiences about electronic discovery at: ediscoveryrules@gmail.com.

[Revised: 11-10-2009 ]

Florida Panel takes ‘thoughtful and deliberate’ route toward e-discovery rules proposals

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/930a4fcd78474817852575da00677106?OpenDocument

Panel takes ‘thoughtful and deliberate’ route toward e-discovery rules proposals

E-discovery rulemaking in states is a complex process, says Lawrence Kolin, chair of the Civil Procedure Rules Subcommittee on Electronic Discovery.

Kolin’s group, consisting of attorneys in diverse areas of practice and members of the judiciary, has been studying the issue since before the implementation of the federal rule amendments in 2006.

Earlier this year, Kolin set out to implement interim procedures in the state’s business court divisions as a test prior to a rollout of any statewide rules.

“That was before the budgetary crisis and foreclosure avalanche took precedence,” said Kolin, an Orlando attorney and mediator.

Kolin said despite input from the Civil Procedure Rules Subcommittee on Electronic Discovery at a meeting of the Task Force on Management of Cases Involving Complex Litigation, the only mention of electronically stored information (ESI) was made without specific guidance from the Florida Supreme Court in its recent opinion and amendment resulting from that effort. Kolin, however, was pleased to see the beginnings of implementing “the culture of cooperation” in new Rule 1.201.

“The early meet-and-confer federal discovery culture is foreign to state cases, but will lead to efficient use of resources for parties and the courts once it becomes familiar,” Kolin said.

Many states have adopted wholesale the language of the federal rules, but positions on the effectiveness of those rules are also evolving. Kolin points to the American College of Trial Lawyers which is seeking to reform the current Federal Rules of Civil Procedure just two and a half years after the amendments took effect. Under its proposal, an immediate conference would be held regarding preservation, with a preservation order issued by the judge.

Kolin said the college wants discovery to be governed by the judge rather than by the parties and a single judicial officer would handle a case from start to finish. Safe harbor language would be changed from inadvertent to a willful and reckless standard. He said mandatory disclosures would be enforced through immediate production by the plaintiff of materials supporting their case, followed quickly by the defense. Kolin notes that the college does advocate that issues should be delineated early and narrowed. He said, “This is a positive goal that avoids having the litigation be focused on the discovery rather than the merits of the case where resources are better spent.”

The Civil Procedure Rules Subcommittee on Electronic Discovery has likewise discussed that e-discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to adjudication, expense, and burdens, Kolin said. A straw poll taken at the Midyear Meeting revealed the full committee wants to take the “thoughtful and deliberate” route to this type of rulemaking, Kolin said.

Less than half the states have enacted such rules so far.

“States like Louisiana have already had to add to their previous e-discovery rule amendments to address ESI, which is something we would like to avoid,” Kolin said.

Kolin said the importance of continuing education of lawyers and judges about technology creating ESI and its application in cases of all types. He encourages input from the bench and Bar through a dedicated e-mail at ediscoveryrules@gmail.com.

FLORIDA BAR NEWS 2009

E-discovery rules on track

On the second anniversary of the passage of the federal rules, a growing number of states are implementing rules in the area of electronic discovery.

E-discovery rules are still a work in progress in Florida, according to Orlando lawyer Lawrence Kolin, who chairs the Civil Procedure Rules Subcommittee on Electronic Discovery.

Kolin’s group, consisting of attorneys in diverse areas of practice and members of the judiciary, has been studying the application of the federal rules since their passage.

“It is pretty well settled now that up-front disclosures and early meet and confer type rules avoid protracted litigation and allow parties to get to the merits of their dispute,” Kolin said. “While the body of law emerging from the federal courts continues to produce somewhat varied holdings, at least it provides some guidance going forward with what to expect from reasoned decisions, should the Florida rules largely mirror the language and concepts of the federal rules.”

That is the plan at present, Kolin said, cautioning, however, that more than 40 federal district courts have further tailored requirements in special local rules, forms, or guidelines.

Kolin said his panel understands a culture shift will occur slowly for some and old ways of litigating in state court must eventually be overcome in the electronic data era.

“We hope to craft rules that encourage the parties to work together to avoid unnecessary hearings that the judicial system certainly cannot afford in this time of financial crisis,” Kolin said.

As an interim step, he said, case management rules are forthcoming for the business courts or complex business litigation divisions of the state. Some states, such as Arizona, have addressed e-discovery in family law rules, as those cases tend to be on the forefront of data issues with instant messaging and cell phone SMS texts being sought and used by litigants.

Kolin said there is a need for continuing education of practitioners and judges in this evolving area that concerns all litigants. He also encourages members of the Bar to contact him with any comments, experiences, or observations regarding electronic discovery they wish to share with the subcommittee at an e-mail address he has set up for that purpose: ediscoveryrules@gmail.com.