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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.
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