October 22, 2021

Volume XI, Number 295

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Florida Courts Adopt Rules Specifically Addressing Electronic Discovery

While some of the rules overlap with existing federal provisions, there are some differences—key among them Florida's absence of a mandatory "meet and confer" rule.

The Sunshine State joins a growing list of states adopting rules specifically addressing electronic discovery in their courts. In a July 5 decision, the Florida Supreme Court unanimously approved amendments to the Florida Rules of Civil Procedure addressing discovery of electronically stored information (ESI).[1] Specifically, the court adopted amendments to seven rules as been recommended by the Florida Bar, with all changes effective September 1, 2012.

Discovery of ESI

Discovery of ESI is now expressly authorized under the amendments to Rule 1.280 (General Provisions Governing Discovery). The rule, however, also contains good cause limitations under subdivision (d)(1), where a party can object to a discovery request for ESI upon a showing that the target of the request is "not reasonably accessible because of undue burden or cost"—a rule similar to Federal Rule of Civil Procedure 26(b)(2)(B). If the showing is made, the court can still order discovery if the requesting party "makes good cause," but the court is also given the discretion to shift costs to the requesting party. Subdivision (d)(2), though, adopts proportionality and reasonableness principles, whereby the court has the obligation to limit discovery of ESI if it is "unreasonably cumulative or duplicative"; it can be obtained in a "more convenient, less burdensome, or less expensive" manner; or the burden outweighs the likely benefit.

Rule 1.410 (Subpoena) was amended to allow for a subpoena requesting ESI, but also contains the same good cause and proportionality limitations listed in Rule 1.280.

Rules 1.340 (Interrogatories to Parties) and 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) were both amended to allow for the production of ESI "in the form in which it is ordinarily maintained or in a reasonably usable form" in response to interrogatories and specific requests. These provisions generally mirror Federal Rule of Civil Procedure 34(b)(2)(E).

The "Meet and Confer" Process

One of the biggest differences between the federal rules and those adopted in Florida is the absence of a mandatory rule requiring parties to "meet and confer" to address ESI, as required under Federal Rule of Civil Procedure 26(f). The amended Florida rules do, however, allow trial courts to consider electronic discovery issues during pretrial conferences. Rule 1.200 (Pretrial Procedure) makes these allowances, including latitude for the court to consider 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." Similarly, Rule 1.201 (Complex Litigation) was amended "to require the parties in a complex civil case to address the possibility of an agreement between them addressing the extent to which electronic information should be preserved and the form in which it should be produced."

Sanctions

Similar to Federal Rule of Civil Procedure 37(e), sanctions for inadvertent destruction of ESI are limited under Rule 1.380 (Failure to Make Discovery; Sanctions), which states that sanctions will not be imposed on a party that fails to provide ESI that was "lost as a result of a routine, good-faith operation of an electronic information system."

Otherwise, the amendments are silent on mandatory sanctions, noting that other Florida rules of civil procedure provide the court with the authority to sanction a party for discovery violations.

Preservation

One hot topic not addressed in Florida's amendments is preservation. Although the Federal Advisory Committee on Rules of Civil Procedure and its Discovery Subcommittee have been discussing options that would bring preservation into the context of the federal rules, Florida has not chosen to address the issue at this time. Florida's committee notes reference preservation but only do so in the context of parties discussing the scope of preservation; there is no rule or detail discussing preservation generally.

Conclusion

Litigants and their attorneys practicing in Florida should familiarize themselves with these amendments and the impact they may have on their matters. While there is overlap with the federal rules, there are some key areas of difference, the most marked being the optional "meet and confer" process. Litigants that are prepared to address these topics and that are well versed in these amendments may have an opportunity to reduce their burden during discovery.


[1]. The full decision is available online here.

Copyright © 2021 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume II, Number 216
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About this Author

Stephanie "Tess" Blair, E-discovery and information governance attorney, Morgan Lewis
Partner

Tess Blair and her team offer full-cycle electronic discovery and information governance services to organizations across the globe. Tess is the founder and leader of Morgan Lewis’s eData practice, which seeks to combine great lawyering with technology and process to deliver real efficiency and value to clients. The team includes both lawyers and technologists who support a state-of-the-art data center and technology portfolio to deliver comprehensive counseling and technical services under one roof.

215-963-5161
Scott Milner, Data and privacy attorney, Morgan Lewis
Partner

Co-leader and one of the original attorneys in Morgan Lewis’s eData practice, Scott A. Milner counsels and advises companies in electronic discovery and information governance processes and best practices. He works with Morgan Lewis’s lawyers across practice groups to tailor strategies and discovery management plans for clients around the globe, in numerous industries and disciplines. Scott’s practice encompasses all phases of eDiscovery, from preservation and collection to review and production of large volumes of electronically stored information (ESI).

215-963-5016
Tara Lawler, e-data attorney, Morgan Lewis
Associate

Tara Lawler’s practice focuses on eDiscovery, information management, and data privacy. She works with companies in all phases of electronic discovery and information management, including counseling on various preservation, collection, data processing, document review, and production-related strategies. Tara’s primary focus is on product liability and toxic tort cases, as well as commercial and white collar litigation in US federal and state court. She also counsels clients on legal, technical, and strategic issues involved in the manufacturing, healthcare, software,...

215-963-4908

With the majority of corporate business information now in electronic form, many companies are struggling to manage increasingly large volumes of data. Morgan Lewis’s eData Practice partners with clients’ in-house legal and IT teams to create customized records-management systems that reduce regulatory and litigation risks, streamline discovery processes, and cost effectively serve each company’s long-term business objectives. The overarching goal is to turn electronic data into an advantage, rather than a liability.

215-963-5161
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