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August 14 , 2012

AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE
RE: ELECTRONICALLY STORED INFORMATION

 

On July 5, 2012, the Florida Supreme Court approved amendments to the Florida Rules of Civil Procedure, regarding electronically stored information (ESI). The changes will become effective September 1, 2012. The following is a brief synopsis of the amendments, as well as practice tips for working with the new rules.

Rule 1.200

The Florida Supreme Court amended Rule 1.200 to allow the trial court to consider issues concerning ESI during pre-trial conferences. The new language of the rule directs the parties to be prepared to address issues such as stipulations to the authenticity of ESI, limitations on the scope of ESI and preservation of ESI.

In order to address issues such as authenticity and preservation, it is helpful to have an ESI expert or other tech-savvy person available for consultation. Attorneys are not usually qualified to detect problems with the authenticity of ESI. If you anticipate that the authenticity of ESI could affect the outcome of your case, then be prepared to evaluate these issues well before the pre-trial conference.

Rule 1.280

Rule 1.280 has been amended to authorize discovery of ESI. The bulk of the rule changes addressing ESI lie in the amendments to this rule.

Preparing ESI Discovery Requests

The first step in understanding the amendments to Rule 1.280 is to analyze the specific right to request ESI from other parties. Although standard ESI requests will likely develop in the near future, never underestimate the benefit of meeting with your client to discuss the scope of ESI likely to be maintained by an adverse party. Tailor your ESI requests to the facts of each case in order to maximize the benefit you get from requesting production of ESI.

Florida Rule of Civil Procedure 1.350, pertaining to requests for production, allows a party to request that ESI be produced in a particular format. This is a small component of the rule, but should not be overlooked. Chances are the format in which you receive ESI discovery can make a significant difference in your ability to analyze the enclosed material in an effective manner.

As soon as you receive a new file, consider how ESI can be helpful to your case. Then prepare appropriate discovery requests, seeking ESI in a format that will be helpful to you. Again, consult with your client, and possibly an ESI expert, to determine the best strategy for obtaining ESI from your opponent.

Responding to ESI Discovery Requests

The second step in understanding the amendments to Rule 1.280 is knowing how to respond to when you receive requests for ESI discovery from other parties. First and foremost, you should consult with your client to determine whether they maintain information responsive to the ESI requests. You may need to meet with your client's IT team, or outside contractor for your client's electronic systems.

Objections Based on Undue Burden

After determining whether your client has information responsive to the ESI requests, you should assess whether responding to the ESI requests will be unduly burdensome for your client. Consider factors such as the cost of the discovery itself, man hours necessary to locate and prepare the ESI for production or identification, and any lost profits that may result.

Rule 1.280 allows a party to object to ESI discovery requests. However, if a motion to compel is filed against your client, then your client will have the burden of showing that the ESI is not reasonably accessible. The rule includes "undue burden" and "cost" as factors to consider when determining the accessibility of ESI.

However, the court can order production of ESI, even if the ESI is not readily accessible, upon a showing of good cause. "Good cause" is not defined, but the good cause argument may be as easy as establishing that the information sought will be helpful to the requesting party's case and the requesting party would not otherwise have access to the information. This will probably require evidentiary proof, such as an affidavit from your client.

If your client is ordered to respond to ESI discovery, Rule 1.280 allows the court to place conditions on the production. The rule specifically authorizes the court to order the party seeking ESI to pay the cost of production, but you should consider whether other conditions might also be appropriate.

Objections Based on Privilege

The rules do not address privilege arguments for withholding production of ESI. As with any case, you should object to production, or even identification, of ESI that falls under a privilege. A privilege log will probably be required.

Limitation on Extent of ESI

Rule 1.280 specifically authorizes the court to limit the frequency or extent of ESI discovery requests in two situations. If the requests are unreasonably cumulative and the ESI can be obtained from a more convenient source in a less burdensome manner, the court can order production from the alternate source. The court also has the power to limit ESI discovery if the burden or expense of production outweighs the likely benefit. Again, this may require evidentiary proof to support the alternate methods of obtaining the requested ESI.

Time of Response

The rules do not allot any additional time for responding to discovery of ESI, so be prepared in advance. Anyone who has had to respond to ESI discovery knows that ESI takes a lot longer to assess and prepare than traditional paper discovery.

The comments to Rule 1.280 indicate that the parties should confer early in the case, to determine the reasonable scope of ESI discovery. Obviously, you should meet with your client before agreeing to what a reasonable scope of ESI would encompass.

The comments also indicate that the court may find its task of arbitrating ESI disputes more difficult if the parties are not familiar with the information that the sources at issue contain. Do not make the court's job more difficult. Learn about the ESI maintained by your client as early as possible. Knowledge of your client's ESI does more than please the court; it prevents unwelcome surprises down the road.

Rules 1.340 and 1.350

Rules 1.340 and 1.350 now allow production of ESI in response to an interrogatory or request for production. Do not forget that the requesting party can specify the form in which the ESI is to be produced.

Rule 1.380

The amendment to Rule 1.380 provides that absent exceptional circumstances, no sanctions should be awarded against a party who fails to provide ESI as a result of routine and good faith maintenance of their ESI systems. However, it is good practice for your client to have reasonable guidelines for maintenance of ESI. You should request a copy of your client's guidelines when you meet to discuss the ESI available.

Rule 1.410

Rule 1.410 now allows parties to serve subpoenas for ESI. Non-parties may object to the production of ESI on the same grounds a party; namely, that compliance would be unduly burdensome or prohibitively expensive. The court has the ability to order compliance for good cause, but can place restrictions on the manner and cost of compliance.

Conclusion

Discovery of ESI will become the norm faster than may be comfortable for some of us. However, ESI is a valuable tool that can give your client the upper hand in litigation, particularly when opposing counsel is not proficient in utilizing ESI. Take the time to understand the ESI available to you in every case, and you may find that the extra effort serves you well.


Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com
www.rissman.com

 

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