Oral Argument on FL E-Discovery Rules Scheduled 2012

Per the Supreme Court of Florida, oral argument on the Florida Bar’s Civil Procedure Rules Committee's out-of-cycle report proposing rule amendments to address discovery of electronically stored information or ESI will take place March 7, 2012 in Case No.: SC11-1542.

The proposed amendments are to 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).

A full copy of the language is posted at: www.floridasupremecourt.org/clerk/comments/index.shtml

Last day for comments on E-Discovery Rules

Per the Supreme Court of Florida, the Florida Bar’s Civil Procedure Rules Committee has submitted an out-of-cycle report proposing rule amendments to address discovery of electronically stored information or ESI.

The committee proposes amendments to 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).

The Florida Supreme Court invites comment on the proposed amendments by filing an original and nine paper copies by October 17, 2011 with a certificate of service verifying that a copy has been served on current committee chair, Kevin Johnson, Esq., 201 N Franklin Street, Suite 1600, Tampa 33602-5110, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case.

The committee chair has until November 7 to file a response to any comments filed with the court. Electronic copies of all comments also must be filed in accordance with the court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

As reported by Florida Bar News:

http://tinyurl.com/3jqv5de

Rules proposed in PDF at Florida Supreme Court's website:

http://www.floridasupremecourt.org/decisions/probin/sc11-1542_PublicationNotice.pdf

U.S. Seventh Circuit Pilot may prompt changes following Phase II

The U.S. Seventh Circuit Electronic Discovery Pilot Program Principles of the Electronic Discovery Pilot Program and Standing Order developed in Phase I are now in Phase II. The Pilot’s central themes include: purposeful, proportionate discovery, meaningful cooperation, need for expert liaisons on information technology, early dispute identification, and alternative dispute resolution and an educated client.

These principles are are modeled after the Sedona Principles and are intended to help the courts and parties secure “the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court Intervention.”

The initial Pilot Program ran from October 1, 2009 through March 1, 2010 in the Northern District of Illinois and 92% of judges reported positive effect on counsel and a decrease in E-Discovery disputes and related costs. Phase II has been extended to May, 2012.

The goal of the Principles is to provide incentives for the early and informal information exchange on commonly encountered issues relating to evidence preservation required by Federal Rule of Civil Procedure 26(f)(2). The Principles provide guidance on how to streamline (e.g., suggesting formats which are generally not required to be preserved, thus requiring a party to discuss the need for such formats early in the pretrial litigation process) and how to resolve disputes.

For more information, see the program's website:

http://www.discoverypilot.com/

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 E-Discovery Rules fast-tracked following approval of standing committee

On June 23, 2011, following six years of subcommittee study, debate and drafting, the full Civil Rules committee finally approved the draft E-discovery rules for submission off-cycle to the Supreme Court of Florida.

The changes are reflected in the most recent iteration of the rules package fresh from the drafting subcommittee which now specifically include Electronically Stored Information or "ESI" and propose to revise Florida Rules of Civil Procedure: RULE 1.200. PRETRIAL PROCEDURE, RULE 1.201. COMPLEX LITIGATION, RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY, RULE 1.340. INTERROGATORIES TO PARTIES, RULE 1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES, RULE 1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS, and RULE 1.410. SUBPOENA.

Detailed draft rule language with strike-through portions visible is available in the June 2011 Annual Convention Meeting Agenda found here:

http://www.floridabar.org/cmdocs/cm210.nsf/WDOCS/28100E0461926D96852578A8006605AB

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