Saturday, July 7, 2012

Just as I was sending in my update to the printer (Lexis), the Florida Supreme Court comes out with the new, much anticipate rules for eDiscovery.  The new amendments affect seven civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena).

You better learn what ESI is (Electronically Stored Information).  When I first joined the Third District, all the judges had computers, but some would not even turn it on.  I don’t think my friend Mario even knew how.  Then e-mail made it hard to avoid the use of computers.  We’ve come a long way!

I think the crux is in rule 1.280 (General Provisions Governing Discovery) which was amended to expressly authorize discovery of electronically stored information. There is a new subdivision (d), which provides some specific limitations on discovery of ESI. Under new subdivision (d)(1), a person may object to a discovery request seeking electronically stored information. On a motion to compel discovery, or a motion for a protective order, the person from whom the discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If this showing is made, the court may nonetheless order the discovery if the requesting party shows good cause. However, the court may specify certain conditions of discovery, including ordering that some or all of the expenses incurred while complying with the discovery request be paid by the party seeking the discovery. Under subdivision (d)(2) the court, in addressing a motion pertaining to discovery of ESI, must 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.

Rule 1.340 (Interrogatories to Parties) and rule 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 electronically stored information, either as an answer to an interrogatory or in response to a specific request. Both rules now allow a party to produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form.

Rule 1.380 (Failure to Make Discovery; Sanctions) was amended to provide that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system.

The effective date is September 1, 2012, at 12:02 a.m.  There must be a reason the court did not make it 12:01.

1 comment:

  1. Sure is interesting how ediscovery continues to evolve over the years.