E-Discovery and Family Law – How will the New Rules Impact Divorce Cases?
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. August 9, 2012
By: Jason Marks
Much has been posted on this blog about the new changes to Florida’s Rules of Civil Procedure concerning e-discovery. Now, let’s look at how those rules will impact family law procedures. Under the new Rules of Civil Procedure, family court judges are given discretion to limit the scope of discovery where the cost of obtaining the discovery may outweigh that of the marital estate. In addition, Rule 1.280(d) expressly grants the court the right to order that the requesting party pay for all or part of the cost of obtaining discovery.
In divorce cases, where relationships between the parties are generally acrimonious, the new rules concerning discovery will help the courts deal with issues that may arise when one party attempts to use discovery to hurt his or her spouse’s business.
For example, Wife owns a successful real estate brokerage business. Husband is unhappy that Wife filed for divorce, so, to seek revenge, Husband propounds extensive discovery seeking documents pertaining to Wife’s business for the last ten years. Wife’s business is managed exclusively online and backed up using a “cloud” system. The cost to obtain all of the documents Husband is seeking is $40,000. The new rules allow Wife to object to the discovery request on the grounds of undue cost. The court can then review the circumstances. If the court decides there is good cause for the discovery to go forward, it also has the authority to shift some or all of the cost to Husband. This may cause spouses to think twice before aggressively propounding discovery on their soon to be exes. We will keep an eye on it.