Florida Joins the Growing Number of States That Have Adopted Specific Rules Addressing Electronic Discovery

Effective September 1, 2012, Florida joined the long list of states that have adopted specific rules of procedure governing electronic discovery, which follows the July 5, 2012, announcement by the Supreme Court of Florida of its proposed amendments to seven civil procedure rules aimed at addressing the specific dilemmas facing litigants when e-discovery is sought. Florida’s Supreme Court approved and adopted the amendments in a formal opinion issued on July 5, 2012. While these amendments generally mirror the amendments to the Federal Rules of Civil Procedure first adopted by the United States Supreme Court in 2006, they diverge from the Federal Rules in some critical areas.

Similarities to the Federal Rules

Florida’s new rules, like the Federal Rules, permit parties to object to requests for electronic discovery on grounds of undue burden and cost or on grounds that the information sought is not reasonably accessible. Unless the parties otherwise agree, Florida’s rules also permit litigants and non-parties alike to produce ESI in the form in which it is ordinarily maintained or in a reasonably usable form. Florida Rule 1.280 also provides Florida courts with the discretion to set certain conditions of discovery including the ability to shift some or all of the expense associated with complying with the discovery. That same rule also requires that the Court limit the frequency or extent of discovery if it determines that the information sought is (i) 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 (ii) the burden or expense of the discovery outweighs its likely benefit. Florida’s rules also provide a safe harbor from spoliation sanctions if the unavailable information has been lost as a result of the routine, good-faith operation of an electronic information system. The Committee Notes for this amendment make clear, however, that simply allowing the destruction of ESI through the routine operation of an electronic information system when preservation or production is required may not be viewed as acting in good faith under these rules.

Divergence from the Federal Rules

Florida’s new rules diverge from the Federal Rules in two key areas. Unlike the Federal Rules, Florida’s rules do not require the parties to “meet and confer” in advance of the initial case management conference to attempt to work out a discovery plan regarding the production and preservation of electronically stored information. Although Florida Rule 1.200 mentions a discussion by the parties at the initial case management conference regarding the potential for an agreement regarding electronic discovery issues, there is no meet and confer requirement in advance of such conference. In addition, Florida’s rules do not address preservation of ESI. Although the Committee Notes make some reference to the parties discussing the scope of preservation, the amendments and Committee Notes are silent on a party’s obligation to preserve ESI.

Florida practitioners and litigants will no doubt be faced with a myriad of ESI issues arising from the adoption of these amendments. Practitioners who are knowledgeable about both these amendments and the more encompassing Federal Rules will be best prepared to tackle the electronic discovery disputes that will surely follow in the wake of these amendments.

Robert D. Brown Jr. is Counsel to the Gibbons Products Liability Department and a member of the Gibbons E-Discovery Task Force.
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