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

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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.