Join me in Orlando at OCBA's Bench Bar Conference!

Tomorrow, April 11, 2014, I will be speaking on a few panels at the Orange County Bar Association's Bench Bar Conference at the Loews Royal Pacific Hotel at Universal Studios Orlando Resort. I am particularly excited about joining the Hon. David Baker, U.S. Magistrate Judge for the Middle District of Florida, on Advanced E-Discovery. We will be reviewing some of the proposed amendments to the Federal Rules of Civil Procedure, including 37(e) and 26(b)(1). Our CLE is actually occurring the same time that the federal civil rules advisory committee is meeting in Portland. Concerns about  proportionality moving factors to Rule 26(b)(1) were raised last fall at the Duke conference-- that it will shift the burden of proving proportionality to the party seeking discovery, that it will provide a new basis for refusing to provide discovery, and that it will increase litigation costs. None of these predicted outcomes is intended and the proposed committee note has been revised to address them. The note explains that the change does not place a burden of proving proportionality on the party seeking discovery and explains how courts should apply the proportionality factors. The note also states that the change does not support boilerplate refusals to provide discovery on the ground that it is not proportional, but should instead prompt a dialogue among the parties and, if necessary, the court. The Duke subcommittee was convinced that the proportionality considerations — which already govern discovery and parties’ conduct in discovery — should not and will not increase the costs of litigation. To the contrary, they maintain more proportional discovery will decrease the cost of resolving disputes in federal court without sacrificing fairness. See OCBA seminar agenda here-- http://www.orangecountybar.org/content/uploads/PDFs/Bench%20Bar%20Content%20by%20Session.pdf See advisory committee report here-- http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2014-04.pdf

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.

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

ESI Rules in effect for AAA Complex Commercial Disputes

New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. These new rules should better equip Arbitrators to control modern discovery and the costs associated with the advent of electronic discovery.  See AAA rule changes here-- http://go.adr.org/LP=307 and a summary http://bit.ly/16z6r3i

Join me this month 10/17-18 at Innovate conference!

Technology is outpacing the law. IT-Lex is a Florida not-for-profit organization dedicated to narrowing this gap with entertaining educational experiences. I'll be speaking with nationally known members of the judiciary such as Magistrate Judge John Facciola on clawbacks and cooperation in E-discovery at the first annual conference, Innovate. The Innovate conference will take place on October 17 & 18 in Winter Park, Florida at the brand new Alfond Inn at Rollins College and is designed as an interactive learning experience. Participants are encouraged to email specific questions or comments on our various topics to innovate@it-lex.org. You can email us before or during the conference and presentations, and your participation is a key part of the conference experience. Come join us in introducing new methods and ideas to tackle emerging technology law issues with experts like Ken Withers of The Sedona Conference. See more information here-- http://it-lex.org/innovate/ or the full PDF here- http://it-lex.org/wp-content/uploads/2013/09/Innovate1.pdf or follow @ITlex.org

Join me next month in Orlando for It-Lex's Innovate 10/17-18!

Technology is outpacing the law. IT-Lex is a Florida not-for-profit organization dedicated to narrowing this gap with entertaining educational experiences. I'll be speaking with nationally known members of the judiciary such as Magistrate Judge John Facciola on cooperation in E-discovery at the first annual conference, Innovate. The Innovate conference will take place on October 17 & 18 in Winter Park, Florida at the brand new Alfond Inn at Rollins College and is designed as an interactive learning experience. Participants are encouraged to email specific questions or comments on our various topics to innovate@it-lex.org. You can email us before or during the conference and presentations, and your participation is a key part of the conference experience. Come join us in introducing new methods and ideas to tackle emerging technology law issues with experts like Ken Withers of The Sedona Conference. See more information here-- http://it-lex.org/innovate/ or the full PDF here- http://it-lex.org/wp-content/uploads/2013/09/Innovate1.pdf

ESI as Taxable Cost in Florida?

The Florida Bar's Civil Procedure Rules Standing Committee has responded to comments on its proposed three-year cycle amendments to the Florida Rules of Civil Procedure. Included in these is an amendment to the Statewide Uniform Guidelines for the Taxation of Costs to include electronically stored information or ESI, as has been previously incorporated into existing language in Florida's Rules of Civil Procedure. In federal court, prevailing litigants can seek reimbursement of certain e-discovery expenses as taxable costs under Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920(4). Litigants taxing e-discovery costs have done so with some success. Fed. R. Civ. P. 54(d)(1) allows prevailing parties to recover certain costs and expenses incurred during litigation. Under Rule 54, if a substantiated bill of costs is sent to the clerk, there is a presumption that recovery is proper. However, courts still maintain discretion to reduce any award.  Federal case law suggests 28 U.S.C. § 1920(4) should be used to allow a party to shift the entirety of the costs associate with e-discovery. Last year, Florida's out-of-cycle amendments to the Rules of Civil Procedure regarding discovery of electronically stored information (ESI) went into effect. See In re: Amendments to the Florida Rules of Civil Procedure – Electronic Discovery, 95 So. 3d 76 (Fla. 2012). During the development of our rule changes, my subcommittee on e-discovery rules discussed the subjects of cost-shifting and taxation of costs for production of ESI. Among the considerations were whether the amendments should also contain changes to the Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions. The Florida Supreme Court has previously directed that the Uniform Guidelines be reviewed periodically by the Civil Rules Committee for future revision as needed to improve the ability of trial judges to administer taxing of costs. They also announced a recent policy of discouraging excessive e-discovery and preventing the inclusion of unnecessary ESI in court files. See In re Amendments to Fla. Rule of Judicial Admin. 2.420, 31 So. 3d 756 (Fla. 2011).  No opinion on the latest changes has been released. See additional proposed amendments here: http://www.floridasupremecourt.org/clerk/comments/2013/13-74_Petition_ada.pdf