Florida’s Long-Awaited Amendment to the Rules of Civil Procedure Address ESI Discovery

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By Steve Silverman and the Kluger Kaplan ESI Discovery Group
The Florida Supreme Court has moved Florida into the family of other states with rules of procedure governing electronic discovery issues. The Florida Supreme Court has now passed the long-awaited amendment to Florida’s rules of civil procedure to address the increasingly important and heavily litigated issues relating to preservation and discovery of electronically stored information (“ESI”).
The Florida Supreme Court adopted the e-discovery related amendments in the form previously proposed to the Court by the Florida Bar’s Civil Procedure Rules Committee.
Under the revised rules, discovery of ESI is expressly authorized pursuant to Rule 1.280. Rule 1.280 was also amended to contain a “good cause” provision in subdivision (d)(1), which provides that a party may object to a discovery request seeking ESI upon a showing that the information sought is “not reasonably accessible because of burden or cost.” If a showing of undue burden or cost is made, the court may still allow the discovery, but can allocate some or all of the cost to the requesting party. Pursuant to Rule 1.280(d)(2), the court must limit discovery of ESI if it 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 “the burden of the expense of the discovery outweighs its likely benefit.”
Rule 1.410 was also amended to allow for a subpoena to request electronically stored information but contains the same limitations of Rule 1.280.
Similarly, Rule 1.340 and 1.350 were amended to permit production of ESI “in a form…in which they are ordinarily maintained or in a reasonably usable form.”
One key difference between Florida’s amended rules and the federal rules is the absence of a mandatory “meet and confer” process to address ESI issues. While this is required by Federal Rule 26(f), the amended Florida rules allow the trial courts to address ESI issues during pre-trial conferences (Rule 1.200).
Like Federal Rule 37(e), Rule 1.380 limits sanctions that may be imposed upon a party that inadvertently fails to produce electronic information “lost as a result of routine, good faith operation of an electronic information system.”
Minor changes have also been made to Rule 1.201 to require the parties in a complex business litigation to address, in the joint case management report, whether an agreement can be reached concerning preservation and discovery of ESI.
There are three likely reasons why the amended rules rely heavily on the federal rules: (1) to facilitate the interpretation of the rules; (2) to increase the likelihood that Florida’s state and federal courts will resolve disputes concerning ESI in a consistent manner; and (3) to decrease the risk of forum shopping with respect to disputes concerning ESI.
Over the next few weeks, we will look at these three issues more closely. Stay tuned.
For more information or if you have questions about the new e-discovery rules, please contact Steve Silverman, Chair of Kluger Kaplan’s ESI Discovery Group at 305.379.9000 or ssilverman@klugerkaplan.com
Steve Silverman, Esq. – Chair, Kluger Kaplan ESI Discovery Group
Marilyn Kohn, Esq.
Michael Landen, Esq.
Jonathan Korin, Esq.
Matthew Tuchman