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

E-Discovery Education

Just a note that I will be speaking about Florida's civil procedure rule amendments addressing ESI at the Technology Committee of the Orange County Bar Association (OCBAnet.org) at noon tomorrow, Thursday, July 19, 2012.  I am also speaking as a panelist in a national webinar for the Association of Certified E-Discovery Specialists® or ACEDS.org which will take place at 1 pm EST on August 3, 2012 online. I will also be presenting regarding the new rule amendments during the OCBA's Family Law Committee CLE on September 21, 2012. Look for future speaking engagements as the campaign to educate bench and bar about the effect of these changes continues.

About the Speaker, Lawrence Kolin, Esq. - A full-time neutral and Supreme Court of Florida Certified Circuit-Civil and Appellate Mediator, in Winter Park, Florida, he handles alternative dispute resolution of complex multi-party cases involving professional liability, construction, technology, real estate, employment and contract disputes. Now a qualified arbitrator, he frequently practiced in state and federal courts in diverse areas of civil trial work including business, commercial and patent litigation. Previously, he was a partner in a statewide firm, trying cases in insurance, intellectual property, health care, and medical malpractice, among other areas. He earned a political science degree from Trinity College in Connecticut and a law degree from the University of Miami School of Law, where he was Executive Editor of the Entertainment & Sports Law Review. Mediating since 2001, he is AV® Rated and member of the National Academy of Distinguished Neutrals. He served as founding Chair of the Florida Bar Civil Procedure Rules Subcommittee on Electronic Discovery which drafted new rules becoming effective September 1, 2012.

E-Discovery Rules Effective FL September 1st

The Supreme Court of Florida's opinion just out today adopts amendments to civil rules as previously outlined in my blog below. See full decision here: http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf
Six years in the making! Now begins the education campaign for bench and bar. Effective September 1, 2012 are amendments to seven existing Florida civil procedure 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). This is the culmination of a six-year effort initially chaired by me and with the help of members of my subcommittee of lawyers and judges and the Civil Rules Standing Committee of the Florida Bar. These rules will further allow for the ability for neutrals to play a role in dispute resolution of ESI issues in state court cases. 

"This is the culmination of a rigorous effort to modernize procedure in Florida to include electronically stored information,” attorney Lawrence Kolin, of Winter Park, founding chair of the e-discovery rules committee, told told the Association of Certified E-Discovery Specialists®. See ACEDS Bulletin here - http://aceds.org/news/florida-ediscovery-rules-take-effect-september-1

E-opinions leave out e-discovery rules - electronic service & filing only

In a pair of opinions, the Supreme Court of Florida formally adopted proposed amendments to the Florida rules of court to implement mandatory electronic filing procedures for all documents filed in Florida’s courts. The proposed amendments represent a significant and important step toward the goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing or e-filing. Also in furtherance of this goal, in a separate, related case the justices adopted amendments to the rules of court to require e-mail service of pleadings and documents between parties. All 67 county clerks of court have been directed to be prepared to accept e-filings through the statewide e-portal in the civil divisions by July 1, 2012-- but a subsequent filing by the E-Filing Authority indicates several clerks are still experiencing difficulties that would prevent them from accepting electronic filings on that date. Any clerk may submit a request with the Florida Supreme Court to delay the effective date of these rules in any division or court.  If such a request is granted, an Administrative Order will be issued and published. However, mandatory e-service under Florida Rule of Judicial Administration 2.516 will begin July 1st September 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail.  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 with that e-mail, and the sender’s name and telephone number.  The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. Given the delay from oral argument last year to passage of these e-rules, it is possible electronic discovery rule amendments in Florida argued earlier this year may be adopted later than expected. That would be consistent with comments made regarding the need for educating the bench and bar on the proposals to include ESI in existing civil rules.

See full opinions here -

http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf

UPDATE: CORRECTED OPINION ISSUED 6-26-12 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101_Order_06-26-2012.pdf

The Court sua sponte amends its opinion to change the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012! 

SECOND CORRECTED OPINION ISSUED 6-28-12 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

Proposed amendment for taxation of ESI costs

The Florida Bar's Civil Procedure Rules Standing Committee is inviting comments on its proposed three-year cycle amendments to the Florida Rules of Civil Procedure. Included in these is an amendment to the Uniform Guidelines for the Taxation of Costs to include electronically stored information or ESI, as has been previously proposed and incorporated into existing language for purposes of bringing electronic discovery rules still absent in Florida's Rules of Civil Procedure.

Uniform Guidelines on Taxation of Costs

28-0-1

Adds provisions for taxation of costs for discovery of electronically stored information.

The number above signifies the vote of committee members. A full text of the proposals can be found on The Florida Bar’s website at www.FloridaBar.org. Interested persons have until August 1, 2012, to submit comments to the committee chair, Hon. Richard Nielsen, nielsera@fljud13.org and to the Bar staff liaison, Ellen Sloyer, at esloyer@flabar.org. See The Florida Bar News notice here: http://bit.ly/Lfxbv9