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

Join me next Tuesday, 5/14 for Orlando 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 now affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but 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.

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.