The Supreme Court of Florida considered amendments to the Florida Rules of Civil Procedure concerning E-Discovery last Wednesday, March 7th. For the most part, the amendments were in the mold of the Federal rules that Congress implemented in 2006.
Chief among the goals of the proposed amendments were balancing the burdens and benefits of discovery between the requesting party and the responding party and establishing predictability. To these ends, the proposed amendments focused strongly on giving the line judges greater means and guidance to manage the process of e-discovery. Kevin Johnson, Chair of the Civil Procedure Rules Subcommittee on E-Discovery, stated that the variety found in Florida’s rules surrounding litigation meant that the judges would have to be responsible for managing the e-discovery process.
The Supreme Court also emphasized that they wanted any rules governing the use of electronically stored information (ESI) to be extremely flexible, so that they would not have to go through endless rounds of updates whenever technology changes. As Mr. Johnson stated, “That’s been a theme of our rules, [to] try not to drill down to such a precise outcome specific rule that it is just inflexible and breaks the first time technology changes on you.”
A third theme that ran throughout the session was that of continuing education for attorneys and judges. Retired Circuit Judge Ralph Artigliere was emphatic that attorneys and judges be well informed about the ins and outs of e-discovery and ESI, so that they did not have to rely so heavily upon experts.
As was the case with the Federal rules, the issue of preservation was notably neglected. Currently, it is unknown when the proposed amendments will go into effect, but they do represent a significant step forward after a multi year effort by the Civil Procedure Rules Subcommittee on E-Discovery.