Florida’s ESI Rules vs. the Federal Rules: Where they Overlap and Why
By Steve I. Silverman and the Kluger Kaplan ESI Discovery Group
Two weeks ago the Kluger Kaplan E-discovery Group recapped the recent changes to Florida’s Rules of Civil Procedure that deal with electronic discovery.   Now, let’s take a closer look at why it makes sense for Florida court’s and litigants to interpret its rules after the federal rules.
First, Florida’s trial court judges will be initially responsible for interpreting and applying Florida’s new e-discovery rules.  Trial court judges will therefore benefit from, and will have at their disposal, the wealth of existing federal case law interpreting the federal ESI rules, plus law reviews and commentators’ analyses.
As the federal ESI rules became effective in 2006, federal courts and commentators have had nearly six years to analyze, discuss, debate, and settle on reasonable ways to approach the rules’ more challenging issues.  While federal case law and third party commentators traditionally provide “persuasive” authority in state courts, Florida’s judges may well give theses sources heightened probative value in interpreting Florida’s new rules governing ESI in light of the arduous task state judges face to further educate themselves in this area, and be on par with the many years of experience with these issues that federal courts already possess.
Second, referencing the interpretation of the Federal Rules will increase the likelihood that similar disputes with similar facts will be resolved consistently, irrespective of whether the case is brought in Florida’s state or federal courts.  By promoting uniformity, Florida’s e-discovery amendments may, in time, decrease the litigation costs attributable to conducting electronic discovery.  In the near term, however, fees and costs associated with ESI-related issues will likely continue to increase.
Thus, as cases in Florida state courts produce outcomes similar to those seen in federal courts, litigants will have increased predictability about outcomes (at least with respect to more “routine” ESI issues), and less of an incentive to forum shop between jurisdictions.  This development particularly benefits defendants with substantial interests, e.g., large corporations and businesses, because the amendments supplant the current rules’ less encompassing concept of “undue burden” with the federal rules’ broader principle of proportionality.
Hypothetically, Florida’s prior rules would permit a plaintiff (a) to sue a corporate defendant for claims totaling, say, $50,000; (b) send the defendant requests for production; and (c) demand that the defendant produce voluminous amounts of responsive ESI, where the costs of production could dwarf the amount of the claim.   Indeed, under Florida’s prior rules, a defendant, could be forced to incur the potentially staggering cost of complying with the requests or having to pay to settle the case.  . Florida’s current amendments, however, implement the federal rules’ principle of proportionality, which instructs judges to manage discovery of ESI when it threatens to eclipse the value of any case.
Nevertheless, there is at least one important distinction between Florida’s amended rules and the federal rules. Whereas the federal rules require litigants to “meet and confer” early in the litigation regarding a series of case management issues including e-discovery matters, the current amendments do not provide for such a conference.  The conference requirement was excluded from the amendments due to the considerable variety of cases brought in state courts.
Notwithstanding that the federal rules’ “meet and confer” requirement is considered one of its most effective mechanisms in tackling ESI disputes, two Florida rules do, to a certain extent, obviate the need to institute such a requirement. First, in cases deemed “complex,” where issues pertaining to ESI surely arise often, Florida already has a rule mandating that the parties attend conferences resembling those required by the federal rules.  Second, where circuit courts establish “business courts” for significant commercial cases (as circuit courts in Miami, Orlando and Tampa have done), these courts have adopted local rules requiring early judicial conferences and meetings, which may include addressing E-discovery issues