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.

Florida E-Discovery Rules fast-tracked following approval of standing committee

On June 23, 2011, following six years of subcommittee study, debate and drafting, the full Civil Rules committee finally approved the draft E-discovery rules for submission off-cycle to the Supreme Court of Florida.

The changes are reflected in the most recent iteration of the rules package fresh from the drafting subcommittee which now specifically include Electronically Stored Information or "ESI" and propose to revise Florida Rules of Civil Procedure: RULE 1.200. PRETRIAL PROCEDURE, RULE 1.201. COMPLEX LITIGATION, RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY, RULE 1.340. INTERROGATORIES TO PARTIES, RULE 1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES, RULE 1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS, and RULE 1.410. SUBPOENA.

Detailed draft rule language with strike-through portions visible is available in the June 2011 Annual Convention Meeting Agenda found here:

http://www.floridabar.org/cmdocs/cm210.nsf/WDOCS/28100E0461926D96852578A8006605AB

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.

Civil rules panel to discuss e-discovery at convention

E-discovery rules are being proposed to the full Civil Procedure standing committee at the Bar’s Annual Convention in Boca Raton.

Lawrence Kolin, who currently chairs the Civil Procedure Rules Subcommittee on Electronic Discovery, said his group has put forth language to be incorporated in several existing rules to address electronically stored information or “ESI.” If favorably considered, the changes will proceed to the drafting subcommittee.

Kolin said the panel has conducted multiple interim meetings since its formation, consisting of attorneys in diverse areas of practice, government attorneys, and the judiciary, began studying the federal rules amendments four years ago.

Kolin said just over half of the nation’s states have created their own e-discovery rules.

“Our rules are construed to secure the just, speedy, and inexpensive determination of every civil action, which is why this effort is necessary,” Kolin said.

“Those states that have recognized growing reliance by parties on the creation and storage of digital information potentially relevant to legal disputes, frequently resulting in costly and time-consuming efforts to identify, preserve, and produce electronic records, have passed rules,” Kolin said. “With nearly six terabytes of information being exchanged over the Internet every second, it is time for Florida to get on board with civil rules governing discovery of this electronic data.”

Moreover, Kolin said his subcommittee had found the traditional adversarial approach to civil discovery only tends to foster additional delay and motion practice where ESI is concerned, while the merits of the case are sometimes ignored.

“These issues are no longer limited to complex or commercial litigation and are increasingly evident in the full range of civil cases that routinely involve electronic evidence,” Kolin said.

In seeking to encourage self-determination and have parties work through anticipated issues before judicial intervention whenever possible, Kolin said the subcommittee incentivized early “meet and confer” behavior without actually making it mandatory under case management — something a unanimous straw poll taken at the Midyear Meeting revealed would never pass.

Kolin believes the rule language takes into consideration the burden and cost of discovery in litigation, which has become exorbitant in some instances.

“We have tried to account for the very real difference in state and federal practice culture, while incorporating key concepts in this area which are likely to become black-letter law,” Kolin said. “There is no one-size-fits-all e-discovery rule.”

Commenting on a recent federal court pilot program on electronic discovery in the Seventh Circuit, Kolin said having a set of fair-play rules at the outset of a case was shown to quell pretrial battles between parties. The goal there was to find ways to reduce costs and burdens of electronic discovery which have largely occurred.

“When judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process for litigants,” he said. “Continuing education of the bench and bar on principles of duty to preserve, cost-shifting, and proportionality will also aid resolution of cases on the claims actually at issue.”

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.