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On July 5, Florida became the most recent state to adopt specific court rules governing the discovery of electronically stored information. The amendments, which modify seven Florida state rules of civil procedure, are intended to provide more clarity and guidance for courts and lawyers, as well as help to defray the excessive costs associated with eDiscovery. Currently, 29 states have adopted specific eDiscovery guidelines.
While the new rules do not require parties to “meet and confer” about specific eDiscovery issues, Rule 1.200 provides that “the court may order, or a party by serving a notice may convene, a case management conference.” These conferences are helpful in reducing preservation and production costs as courts and attorneys can decide upon specific parameters and other issues at the outset of discovery. Moreover, agreements on the scope of preservation can help prevent spoliation claims later on.
With regard to complex litigation, Rule 1.201 was amended to specifically require parties to discuss “the possibility of obtaining agreements among the parties regarding the extent to which such electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources.”
The rules also include specific language pertaining to cost-shifting. Under the new subdivison (d)(1) of Rule 1.280, a person from whom discovery is sought may object on a showing that the information sought or the format requested is “not reasonably accessible because of undue burden or cost.” However, a court may nonetheless order the discovery on a showing of good cause, and “specify certain conditions of the discovery, including ordering that some or all of the expenses incurred while complying with the discovery request be paid by the party seeking discovery.”
In addition, subdivision (d)(2) provides that a court must limit the frequency or extent of discovery otherwise allowed by the rules if it determines that “(i) the discovery sought is 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, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” As a result, Florida courts are able to play a more active role in helping to reduce costs and promote fairness and efficiency in the context of eDiscovery.
Florida’s new rules provide more specific guidelines for parties, courts, and lawyers to meet their eDiscovery obligations. The amendments become effective September 1, 2012.