Tune in for 'Open Ninth' This Month

Join me March 21st for my guest appearance on Open Ninth, a first of its kind podcast hosted by Ninth Judicial Circuit Chief Judge Fred Lauten. This program features candid perspectives from judges and interviews with innovators in the legal field. These 'Conversations Beyond the Courtroom' are part of a new communications plan put in place by the Florida Supreme Court that seeks to better connect the courts with citizens. Since 2001, I've mediated lawsuits in this circuit and around the state as a certified mediator. I also served as a General Magistrate in the Civil Division, presiding over circuit cases in Orange County in 2013. In this episode, I discuss my experience as a mediator and the important role of mediation as an effective tool of alternative dispute resolution in the justice system. Be sure to listen here: https://www.ninthcircuit.org/openninth/negotiation-mediation-resolution

ABA #MediationWeek 2014 Features E-Neutral

This year’s American Bar Association Mediation Week theme is “Stories Mediators Tell—From Rookie to Veteran, Exploring the Spectrum of Mediation.” As part of the program, the ABA Section of Dispute Resolution published its October Enews featuring a recent article I authored encouraging use of skilled mediators or E-Neutrals in order to get back to the merits of a case. Now that E-Discovery rules have been used in federal courts for years and more recently in the majority of state courts, disputes over electronically stored information (ESI) are more commonly being addressed in state court litigation. E-neutrals are knowledgeable dispute resolvers who routinely mediate cases involving electronic evidence can help shape discovery plans, allocate costs, suggest technological solutions and create efficiencies in this emerging area. Mediation can feature private caucuses with retained experts or information technology liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding sanctions and unpredictable judicial outcomes. Cooperation under this alternative dispute resolution rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawbacks or agreed confidentiality orders. For more information, see my article here-- http://www.americanbar.org/content/dam/aba/events/dispute_resolution/Newsletter%20articles/Kolin.authcheckdam.pdf and the entire Just Resolutions Newsletter here-- http://www.americanbar.org/groups/dispute_resolution/JustResolutions/November-e-news111121111.html?cq_ck=1413403137831 a

ENE in E-Discovery Heavy Cases?

Mediation and arbitration have been out-of-court dispute resolution options available to Florida litigants for a quarter century. Early Neutral Evaluation or ENE is relatively new and has perhaps not caught on because of lack of court rules and some misconceptions about the process. Early Neutral Evaluation was developed in the United States District Court for the Northern District of California to reduce the expense of litigation for civil litigants. ENE is a hybrid of mediation and arbitration with a goal of helping litigants gain a better understanding of their case. Simply put, a third-party neutral examines the positions of the parties and gives an evaluation of the case. ENE is designed to avoid unrealistic expectations about the probable outcome of a case. ENE ensures time and money are not wasted on litigation and provides a reality check for attorneys and clients. A court-appointed neutral with expertise in ESI can host an informal meeting of clients and counsel once the parties request ENE. Sessions generally include and introduction and opening remarks by evaluator, followed by presentations of claims and defenses by counsel. The neutral evaluator then identifies common ground and probes possible stipulations. Upon clarifying key disputed issues, the evaluator can ask if the parties wish to explore settlement before the evaluation is presented and otherwise conduct settlement negotiations if the parties agree to do so. If not, the evaluator explains their assessment of the case, including what may be awarded at trial, what the settlement range of the case should be, and the strengths and weaknesses of each party’s case. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. Though formal discovery, disclosure and motion practice rights of the litigants are fully preserved, a skilled neutral evaluator with experience in ESI can assist with streamlining case management early, including E-discovery. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary to conclude the case and a monetary estimate of the cost of continuing toward trial. I will be working with other full-time neutrals in Florida to explore establishment of a pilot program here. See California rules here-- cand.uscourts.gov/adrlocrules

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation.

For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information.

An e-neutral or mediator can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

Join me for 5/14 CLE including E-Neutrals in E-Discovery Disputes

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases-- the first such rules for Florida. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp and http://orangecountybar.org/content/uploads/PDFs/May%20CLE%20Flyer-Tech-BizLaw-IP%20Seminar-rev2.pdf for more information.

Neutrals may ease anxiety over Florida’s new E-discovery rules

This podcast featuring my commentary just in from an interview with the Association of Certified E-Discovery Specialists (ACEDS) Editorial Director, Robert Hilson: On March 7, the Florida Supreme Court heard argument on proposed E-discovery rules for state cases, the first such rules for the fourth largest state. The court has put them on fast track, and could approve them by the end of the year. The rules will affect the state’s diverse legal and corporate community and its 63,000 active attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to e-discovery. Neutral third parties, such as special masters, mediators and referees, may be able to assist in these instances. These so-called “neutrals” can shape discovery plans, allocate costs and suggest and create efficiencies that did not exist. Their services are not limited to grappling with old or new rules, or to discovery disputes. Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar committee that helped craft the e-discovery rules the Supreme Court is considering. In this ACEDS podcast, he tells how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. “I try to focus parties on the merits and try to get them off using e-discovery as a sword or shield,” says Kolin. “Mediation is an avenue that can present parties with significant cost-savings if performed early enough in the litigation.”
Podcast introduction:
http://aceds.org/aceds-ediscovery-mediation-podcast-with-lawrence-kolin
Listen to .mp3 here:
http://aceds.org/sites/default/files/ACEDS%20Mediation%20Podcast%20with%20Neutral%20Lawrence%20Kolin.mp3

I'll be speaking at the Association of Certified E-Discovery Specialists

Join me at ACEDS 2012 Annual Conference and Exhibition
 http://aceds.org/conference/program-panels#Sunshine
(I'll be speaking April 3rd).

4:40 PM - 5:50 PM

Session: You can’t spell Sunshine without ‘ESI’: What you should expect under the new Florida e-discovery state rules

Florida will soon have e-discovery rules for its state courts for the first time. The product of a long process led by the Florida Bar, which elicited the views of urban and rural practitioners and judges throughout the very diverse state, the proposed rules are not mirror images of the federal e-discovery rules. They are a sea change in Florida legal procedure. Florida’s 63,000 practicing attorneys, their litigation support and IT staffs, as well as their clients, will be challenged. Most of them are unfamiliar with e-discovery and the duties it entails. What do the proposed Florida state rules require? How do they differ from the Federal e-discovery rules? When are they likely to be approved by the Florida Supreme Court? How should Florida lawyers prepare to handle them well? What penalties are they likely to face for mishandling electronically stored information, and how do you avoid them? In this special panel, experts from around the state, including the lawyer who chaired the Florida Bar rules committee, will show you what you must do to prepare and to implement them when they arrive. This is a vital panel for all Florida legal practitioners and their staffs and for the service providers that do business in the Sunshine State.

Monday-Wednesday, April 2-4, 2012
The Westin Diplomat | Hollywood, Florida USA
Speaker Courtesy Savings Voucher From Lawrence H. Kolin
Save $150 if you use Code "Kolin"
Priceless Knowledge and Networking, Plus Up to 17 CLE Credits
Phone: 786-517-2701
Online: ACEDS.org/conference/registration

One week until Oral Argument on FL E-Discovery Rules

The Supreme Court of Florida, which has the final say on state civil procedure rules, will hear oral argument next week, on March 7, 2012, in Tallahassee. No date has been set for when the rules would become effective. The proposed rules are a compromise between the views of urban lawyers, who urged adoption, and those in rural areas who see no need for change in the existing rules of civil procedure.

“Small firms and solo practitioners think these rules are for the big firms and big cases, but it will affect everyone,” says attorney Lawrence Kolin, of Winter Park, who chaired the e-discovery rules subcommittee before Johnson.

A learning curve will impact the state’s 93,000 licensed attorneys, of which 63,000 actively practice law, especially those unfamiliar with e-discovery. They stress a proactive approach to discovery and allow the parties to request a non-mandatory early case management conference.

The federal rules and court decisions addressing e-discovery can guide the state’s lawyers and judges as they begin to walk through the risky, expensive issues that electronic evidence entails. Except for the case management conference, which Federal Rule of Civil Procedure requires at 26(f), the proposed Florida rules track their federal counterparts in large measure. The new rules do provide for a state court case management discussion on ESI under Rule 1.200.

Big law and big business is counterbalanced by a large and diverse community of small firms and sole practitioners, many in rural area where law is practiced as it was decades ago. This complexion factored in the final content of the rules and the discussions surrounding them.

“The question I heard most is ‘where is this stuff on the bar exam?’” Kolin says, noting that small firms and practitioners were the most vociferous opponents.

See full ACEDS article here:

http://aceds.org/news/florida-supreme-court-fast-tracks-first-florida-e-discovery-state-rules-sets-hearing-march-7

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.

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

Florida Civil Procedure E-Discovery rules still in the works

Florida Civil Procedure E-Discovery rules for state court were discussed at the 2010 Florida Bar Annual Meeting and at the Florida Bar Business Law Section (BLS) annual retreat.

The Civil Rules E-Discovery subcommittee continues to liaise with the BLS group to harmonize draft language with the current federal rules in order to better take advantage of the developing body of case law in that area since 2006.

The Computer and Technology Law Committee of the BLS has approved proposed changes made by its own e-discovery subcommittee, but awaits approval from the Intellectual Property and Business Litigation Committees. The final recommendations will go to the BLS Executive Council for approval in 2011. BLS will then make its formal recommendations to the full Civil Rules Standing Committee.

The proposed amendments are to Rules 1.200, 1.280, 1.350 and 1.410 of the Florida Rules of Civil Procedure. There was also a draft form litigation hold letter 1.9XX [proposed as a baseline pre-suit request] which was ultimately not addressed.

Civil Rules has already approved in concept those changes found in its June 2010 report for Rule 1.200. The change mirrors the complex litigation Rule 1.201 language implemented by the Florida Supreme Court in 2009, in order to include ESI as a topic of discussion at Case Management (the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence).

Of particular significance, consistent with other states adopting areas of federal rule concepts into state practice, the full Civil Rules committee has consistently refused to endorse a mandatory meet and confer à la federal Rule 26 for state practitioners. See the June 2010 report on the Florida Bar's website under Civil Rules Standing Committee for a history of the process to date, including reference to complex litigation division / business court rules already in effect in Tampa.

Without Supreme Court of Florida intervention, the next available regular rule cycle change for Civil Rules in Florida is not until 2013.

E-discovery group to introduce rule language in 2010

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/a1e3d02cfe3823df852576620070b746!OpenDocument

E-discovery rules for Florida are expected to be proposed next year, according to 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 amendments in this area since their passage.

“Recognizing the strain on resources, we want to incentivize the parties to work though anticipated issues before judicial intervention, whenever possible,” said Kolin of Orlando.

Kolin points to the rising burden and cost of discovery in litigation which has resulted in such efforts as the U.S. Court of Appeals for the Seventh Circuit initiating a pilot program to encourage early and informal information exchange on commonly encountered issues.

“Surprisingly, of the states that have adopted statewide procedural rules largely based on federal language, only a minority has made mandatory the ‘meet and confer’ provisions — perhaps in deference to the stark difference in state and federal practice culture,” said Kolin, adding the discussion over a one-size-fits-all e-discovery rules approach continues.

As an interim step, Kolin said the subcommittee worked with Orange County Bar members, The Florida Bar Business Law Section, and experts in the area, including Ralph Losey and William Hamilton, who teach a law school course in the subject, to create local case management rules.

Kolin said those rules have begun to roll out in the “business courts” or complex business litigation divisions of the state, beginning with the 13th Circuit last summer. Judge Richard Nielsen, who presides over that division, has indicated that most of the cases involving electronically stored information (ESI) have sophisticated businesses as parties and attorneys accustomed to the use of technology and the concepts of preservation and proportionality, according to Kolin.

Kolin recently met with Orlando business court Judges Frederick Lauten and Thomas Smith who he says are in favor of adopting similar language and will be approaching Chief Judge Belvin Perry about a Ninth Judicial Circuit administrative order. He has also contacted 11th Circuit Judge Gill Freeman and General Magistrate Elizabeth Schwabedissen, as well as Judges Jeffrey Streitfeld and Charles Greene in the 17th Circuit, regarding adopting case management rules for ESI in advance of statewide rules.

The subcommittee is also working with members of the joint committee of the Trial Lawyers Section and the conferences of the circuit and county courts judges to include the topic of e-discovery in the next Handbook on Discovery Practice.

Kolin continues to encourage members of the bench and Bar to contact his subcommittee with comments and experiences about electronic discovery at: ediscoveryrules@gmail.com.

[Revised: 11-10-2009 ]

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

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/930a4fcd78474817852575da00677106?OpenDocument

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.

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.