On September 1, 2012, new amendments to the Florida Rules of Civil Procedure regarding electronically stored information (“ESI”) went into effect. See In re: Amendments to the Florida Rules of Civil Procedure –Electronic Discovery, No. SC11-1542 (July 5, 2012).
These amendments were largely based on the 2006 amendments to the Federal Rules of Civil Procedure. However, the Rules Committee “overwhelmingly rejected” the federal “meet and confer” process, under which parties must discuss the preservation and production of ESI, due to the potential for delay in routine matters and the likelihood that many cases would not require production of ESI. Highlights of the amendments are below.
1.200 (Pretrial Procedure): New subsections (5), (6), and (7)authorize trial courts to consider eDiscovery issues at the case management conference.
1.201 (Complex Litigation): A new subsection (J) requires the mandatory discovery plan to state whether the parties will obtain agreements regarding the preservation, format, and potential restrictions of ESI.
1.280 (General Provisions Governing Discovery): A new subsection (d),“Limitations on Discovery of Electronically Stored Information,” among other things, calls for two tests in the wake of discovery disputes. Under the “good cause” test, a court may balance the cost and burden of the requested discovery against the relevance of, and the requesting parties’ need for, the information. The “proportionality” test requires a court to “limit the frequency or extent of discovery if it determines that the discovery sought is excessive in relation to the factors listed.” See also Committee Notes to Rule 1.280.
1.340 (Interrogatories to Parties) and 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes): The Rules now authorize production of ESI under a party’s option to produce business records, in the “form or forms in which they are ordinarily maintained or in a reasonably usable form or forms” (Fla. R. Civ. P. 1.340(c)) and provide a procedure for determining the form of ESI to be produced (Fla. R. Civ. P. 1.350(b)).
1.380 (Failure to Make Discovery and Sanctions): A new subsection (e)explicitly bars a court – “absent exceptional circumstances” – from imposing sanctions on a party for failure to provide ESI that was lost as the result of the “routine, good faith operation of an electronic information system.” The Committee Notes emphasize the “good faith” language, which aims to prevent knowing or reckless destruction. See also Petition of the Fla. Civ. P. R. Comm., No. SC11-1542, at 8 (Aug.9, 2011).
1.410 (Subpoena): The amendments to this rule echo the ESI amendments regarding interrogatories (1.340) and requests to produce (1.350) and also incorporate the amendments to Rule 1.280 regarding ESI-related discovery disputes.