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

Supreme Court of Florida Considers E-Discovery Rules

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

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

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.