New Electronic Discovery Rules May Raise Novel Appellate Issues

Electronic Discovery
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For the first time, as of September 1, 2012, the Florida Rules of Civil Procedure now expressly provide for and regulate discovery of electronically stored information (“ESI”). See In Re: Amendments to the Florida Rules of Civil Procedure- Electronic Discovery, 2012 Fla. LEXIS 1318 (Case No. SC11-1542) (Fla. July 5, 2012).

The 2012 Florida e-discovery amendments were patterned after the e-discovery provisions of Rules 16, 26, 33, 34, 37, and 45 of the Federal Rule of Civil Procedure, which have formally regulated discovery of ESI since December of 2006. While the Florida and federal e-discovery rules are similar, they are not identical. For instance, Federal Rule 26(a)(1)(A)(ii) generally requires a party to provide initial disclosure of discoverable ESI (or documentation about the ESI) that it may use to support its claims or defenses, without waiting for a discovery request from the opposing party. But Florida Rule 1.200(a)(7) will allow the court at a case management conference to “discuss as to electronically stored information, the possibility of agreements from the parties regarding the extent to which such evidence should be preserved, 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.”

The following highlights offer a simple overview of the major changes to the Florida Rules with respect to discovery of ESI: • Rule 1.200 allows the trial court to consider various issues related to electronic discovery during a pretrial conference; the need for advance rulings on the admissibility of some ESI; and the possibility of an agreement between the parties as to the extent to which ESI should be preserved and how it should be produced. • Rule 1.201 requires the parties in complex civil litigation to address the possibility of an agreement as to the extent to which electronic information should be preserved and how it should be produced. • Rule 1.280 expressly authorizes discovery of ESI but also specifies certain limitations that a court may place on discovery of ESI. • Rules 1.340 and 1.350 allow for the production of ESI as an answer to an interrogatory or in response to a specific request (either in the form in which it is ordinarily maintained or in another reasonably useable form). • Rule 1.380 will ordinarily preclude a court from imposing sanctions for a party’s failure to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system. • Rule 1.410 allow for a subpoena requesting ESI. The person receiving the subpoena may object by showing that the information or the format requested is not reasonably accessible because of undue costs or burden, but the court can still order production for good cause if consistent with the limitations that will be provided in the new subsection (d) in Rule 1.280. The court may also specify conditions of the discovery, such as ordering that some or all of the expenses be paid by the party seeking the discovery of ESI.

It seems likely that the Florida courts may look to federal opinions and decisions for persuasive guidance regarding disputes about the interpretation and application of these rules due to the similarities of the Florida e-discovery amendments to the 2006 Federal Rules amendments. But Florida courts will inevitably decide new issues of first impression or may choose to diverge from federal opinions on similar issues, as well as noting the differences between the Florida and federal rules. Randall Burks

KADO
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