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.