On July 5, Florida adopted a specific set of electronic data discovery rules for its state courts based upon the 2006 amendments to the Federal Rules of Civil Procedure, but updated to be more specific and in line with the realities of modern e-discovery. These new rules, which are intended to assist parties to better manage, reduce, and predict costs, will take effect on September 1. Many of the changes reflect other similar efforts, such as the Seventh Circuit Electronic Discovery Pilot Program Committee.
The Florida Bar Board of Governors and the Florida Supreme Court adopted amendments to a grand total of seven rules governing the discovery of ESI. Arguably the most important changes address the “meet and confer” process; while Florida elected not to require mandatory meet and confer conferences, they did insert language to facilitate the process. Starting in September, “the court may order, or a party by serving a notice may convene, a case management conference.” Meet and confer rules are becoming increasingly common as they provide a way to limit discovery requests to reasonably targeted sets of data, thus saving both parties time and money. These new rules allow for the judge to be involved in the discovery process at an early stage to help establish the obligations of both parties– a big step toward improving the efficiency of the e-discovery process, eliminating potential spoliation claims, and allowing parties to develop EDD strategies at an earlier stage.
Florida also implemented rules adjusting the ESI discovery process itself. A party may now object to EDD that is difficult to access because of undue burden or cost, and the requesting party must provide evidence showing good cause for why it should be produced. If good cause is met, the court will have the power to specify the conditions of the discovery and even potentially shift the expense of discovery to the requesting party. Cost-shifting provides a direct incentive to parties requesting discovery to ensure that their requests are reasonable and that the data requested has legitimate potential value, thus reducing the overall volume of ESI that must be reviewed and produced. While this requirement has been put into place elsewhere, it does mark Florida as one of the first states to provide this option legislatively rather than through case law.
The new rules also arm the courts with the ability to sanction parties for failing to comply. This amendment follows Federal Rule 37(g) in that it allows for protection from sanctions for the loss of ESI if the party operated in good faith to preserve it. There is no clear indication for exactly when a duty to preserve arises, however, so parties will have to be careful to determine at what point their duty to preserve is triggered until the rules are clarified. Overall, this new set of e-discovery rules should help the state of Florida to reduce costs and increase efficiency in its legal system while paving the path for future evolution in e-discovery and the use of technology in law.