October 25, 2021

Volume XI, Number 298


October 22, 2021

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Florida Rules to Address Electronically Stored Information

As of September 1, 2012, the Florida Rules of Civil Procedure ("Florida Rules") will, for the first time, directly address electronically stored information ("ESI"). Specifically, the following Florida Rules now address ESI:

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)
Rule 1.410 (Subpoena).

This change comes six years after the Federal Rules of Civil Procedure ("Federal Rules") were changed to encompass ESI. The Florida changes largely track the Federal Rules with some minor changes and additions which account for the evolution of eDiscovery over the past six years.

Perhaps the most significant difference between the Florida Rules and the Federal Rules is that the Florida Rules do not require a case management conference to discuss ESI unless the case qualifies as a "complex action." However, any party to a Florida action may notice such a conference to discuss ESI, thereby making it obligatory on the opposing party. The Florida Rules also provide a more detailed outline of topics to be addressed at a case management conference including preservation, format of production, and whether ESI should be produced in phases or limited to particular custodians, time periods or sources.

Another difference is that the Florida Rules now expressly authorize cost shifting for ESI when the producing party demonstrates that the information is not reasonably accessible because of undue burden or cost. Some federal courts have ordered cost shifting under an interpretation of the Federal Rules but the Federal Rules do not expressly provide for cost shifting.

Clients and attorneys, even in "run of the mill" state cases, must now consider eDiscovery. Experience suggests that dealing with eDiscovery early on, even before a case is filed, helps to mitigate cost and to some extent complexity.

The amendments to the Florida Rules take effect on September 1, 2012. A full copy of the Court's decision is available by clicking here.

©Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2021. All rights reserved.National Law Review, Volume II, Number 228

About this Author

Drew Sorrell, commercial, litigation, employment, tort, attorney, Lowndes, law
Partner and Chair, Privacy & eDiscovery Group

Drew Sorrell began his career as a law clerk to Senior United States District Judge John H. Moore, II in Jacksonville, Florida. After clerking, he practiced in New York City with a large international firm, primarily in the area of litigation. Subsequently, Drew returned to Florida and is now a litigation partner with the firm. 

Drew’s practice focuses on commercial (including complex eDiscovery and technology issues), employment, and significant tort litigation, as well as related appellate litigation. He has argued to the United States Court of Appeal for the Eleventh Circuit, at...

Melody Lynch, labor, employment, sports, entertainment, attorney, Lowndes

Melody Lynch divides her work among the Labor and Employment, Commercial Litigation, eDiscovery, and Sports and Entertainment practices. She has worked on matters involving Title VII, Fair Labor Standards Act, Family and Medical Leave Act, whistleblower laws and disputes over employment contracts, non-competition agreements, and non-disclosure agreements. Melody represents employers before state and federal courts, as well as before administrative agencies including the Equal Employment Opportunity Commission, the Florida Commission on Human Relations, and the...