Florida's ESI Guidelines

The Florida Bar Business Law Section promulgated new Electronic Discovery or ESI Guidelines that promote early consultation and resolution of ESI issues. They seek to avoid court intervention, thereby promoting reasonable and efficient e-discovery of electronic information, while minimizing costs, delays, and burdens to the parties and the courts. Of course, e-neutrals can be utilized to create a workable protocol without judicial intervention allowing parties to get back to litigating on the merits if they cannot resolve the underlying matter. With the introduction of amended Florida Civil Procedure Rule 1.280 on January 1, 2025, these guidelines place a greater emphasis on proportionality, and practitioners and the courts are encouraged to review and utilize precedent and committee notes regarding Fed. R. Civ. Pro. 26 when addressing and resolving ESI discovery issues.  See more here-- https://flabizlaw.org/wp-content/uploads/2025/06/BLS-Proposed-Civil-Case-Guidelines-re-ESI-Discovery-6.20.25-EDDEC-and-Rules-C-final-as-revised.pdf

E-Discovery Expenses Taxable in Florida

Last month, The Supreme Court of Florida adopted amendments to the Uniform Guidelines on the Taxation of Costs effective January 1, 2014 that specifically allow successful litigants to recover certain “Electronic Discovery Expenses.” Specifically, two categories of taxable e-Discovery costs may now be considered: (1) The cost of producing copies of relevant electronic media in response to a discovery request; and (2) The cost of converting ESI or electronically stored information to a reasonably usable format in response to a discovery request that seeks production in such format. The amendments were drafted by the standing Florida Civil Rules Committee which voted 28-0-1 to add provisions to Florida’s Rules of Civil Procedure to allow for the taxation ESI costs, consistent with cost shifting post-trial and recent federal case law awarding costs pursuant to 28 USC § 1920 - Taxation of Costs. My experience has been that under the old uniform guidelines, trial courts only award a modicum of expenses in traditional categories and that the ability to shift costs associated with electronic discovery during post-trial proceedings will be similarly narrow. Perhaps parties would do better to focus their cost-shifting efforts earlier in discovery during litigation, rather than wait until after trial to litigate the issue-- even when parties believe that they will prevail on the merits. Counsel would do well to keep accurate and detailed records of ESI costs if they wish to recoup significant vendor related discovery costs later. See court opinion amending civil rules here-- http://www.floridasupremecourt.org/decisions/2013/sc13-74.pdf

Today's the Day for Electronic Everything!

Effective September 1, 2012, E-Discovery amendments to the following
existing Florida Rules of Civil Procedure drafted in my subcommittee are effective: 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). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at--http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf

Additionally, mandatory E-service begins in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by E-mail under Florida Rule of Judicial Administration 2.516 is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. Attorneys practicing in the criminal, traffic, and juvenile divisions of the trial court may voluntarily choose to serve documents by e-mail under these procedures or may continue to operate under existing rules. E-mail service will be mandatory for attorneys practicing in remaining divisions on October 1, 2013. See E-Service opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

Finally, though civil ECF is well-established in Orange County, new electronic filing requirements adopted by the Fifth District Court of Appeal begin today by Administrative Order-- http://www.5dca.org/Clerk/Administrative%20Orders/AO5D12-03_08_12.pdf. Those who practice in this area should register with the appellate court's eDCA system-- http://edca.5dca.org

Fla. Bar News: Court Lays Down Rules Governing E-Discovery

The following is a repost of The Florida Bar News story from the forthcoming August 1, 2012 issue quoting me-- http://bit.ly/MEAxsu

The Florida Supreme Court has approved procedural rule amendments governing the discovery and production of electronically stored information (ESI) in civil cases.

“This is the culmination of a six-year effort of the Civil Procedure Rules Committee to bring forth modernization of the procedure in Florida in keeping with federal trends for the inclusion of ESI,” said Winter Park attorney Lawrence Kolin, the first chair of the rules committee’s E-Discovery Subcommittee. “I am proud of our ability to utilize amendments to existing rules and to respect the differences in state practice regarding this realm. We now must be sure to educate bench and Bar on this momentous change in Florida civil procedure.”

The court accepted the committee’s proposed changes to seven procedural rules.

Rules 1.200 (Pretrial Procedure) and 1.201 (Complex Litigation) were amended to address electronic discovery as part of the pretrial procedures, including the possible need for rulings on electronic evidence and “the possibility of an agreement between the parties regarding the extent to which such information should be preserved and the form in which it should be produced,” the opinion said.

Rule 1.280 was amended to specifically allow for discovery of ESI and also set some limitations on such discovery.

It also spells out procedures for the recipient of a discovery request to object to that action if it will cause an undue burden or cost too much.

The court may still grant the request, if the requesting party shows good cause, although some or all of the discovery costs may be imposed on that party.

Another new subdivision of that rule limits electronic discovery if it becomes duplicative or the information can be obtained from another source that is less burdensome or less costly, or if the trouble of producing the information likely outweighs any expected benefit.

Rule 1.340 (Interrogatories to Parties) and Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) were amended to allow for producing ESI in response to an interrogatory or specific request.

“Both rules provide for a party to produce the ESI in the form in which it is ordinarily maintained in or in a reasonably usable form,” the opinion said.

Rule 1.380 (Failure to Make Discovery, Sanctions) was amended to remove the possibility of sanctions, except in exceptional circumstances, if ESI was lost “as a result of the routine, good-faith operation of an electronic information system.”

Rule 1.410 (Subpoena) was amended to allow for subpoenaing electronic records and providing a procedure and grounds for the subpoena recipient to object.

The new rules are effective September 1.

The court acted July 5 in case no. SC11-1542, In Re: Amendments to the Florida Rules of Civil Procedure – Electronic Discovery.

E-Everything coming in FLA.

Effective September 1, 2012, E-Discovery amendments to the following
existing Florida Rules of Civil Procedure become effective: 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). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at--
http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf

Additionally, mandatory E-service begins September 1st in civil, probate,
small claims, and family law divisions of the trial courts, as well as in
all appellate cases. Under Florida Rule of Judicial Administration 2.516,
service by E-mail is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. When the rules take effect on September 1, attorneys practicing in the criminal, traffic, and juvenile divisions of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013. See E-Service opinion at--
http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

Finally, all 67 county clerks of court have been directed to accept
E-filings through the statewide e-portal in the civil divisions and new
electronic filing requirements will become effective in the civil, probate,
small claims, and family law divisions of the trial courts, as well as for
appeals to the circuit courts in these categories of cases, on April 1,
2013. As civil ECF is well-established in Orange County, this is nothing
new. Next, the new electronic filing requirements the Court adopts will
become effective in the criminal, traffic, and juvenile divisions of the trial courts, as well as for appeals to the circuit court in these categories of cases, on October 1, 2013. See E-filing opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf