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