UPDATE:  JULY 12, 2012

On July 5, 2012, the Florida Supreme Court adopted the proposed amendments to the Rules of Civil Procedure, which address discovery of electronically stored information (ESI). The amendments go into effect September 1, 2012 at 12:02 a.m. 

To see the full opinion, click here.

Original Article Posted on November 8, 2011

The Florida Bar’s Civil Procedure Rules Committee has submitted proposed amendments to the rules of civil procedure regarding electronic discovery to the Florida Supreme Court. The proposed amendments cover considerable scope, including several discovery rules as well as pretrial and complex litigation procedure. While the proposed rules are still in the comments stage and do not necessarily represent amendments that will be incorporated into the Florida Rules of Civil Procedure, it is likely that there will be some amendments to the Florida rules in keeping with the e-discovery provisions that were added to the Federal Rules of Civil Procedure in December 2006.

The Rules Committee has proposed the addition of several new provisions to the pretrial procedure rule, Rule 1.200. These amendments largely seek to identify potential issues regarding electronically stored information (“ESI”) early in the litigation process. These proposed amendments include provisions regarding factual admissions and authenticity stipulations regarding ESI, advanced rulings from the court on the admissibility of ESI, and agreements regarding the form in which ESI should be produced and the extent to which ESI should be preserved. Identical provisions regarding agreements between the parties regarding the production of ESI are also proposed for Rule 1.201 regarding complex litigation.

The bulk of the proposed amendments are to the rules regarding discovery from parties and non-parties. The Rules Committee proposes that the general discovery rule, Rule 1.280, be amended to provide that “[a] party may obtain discovery of electronically stored information in accordance with these rules.” Additionally, the Rules Committee proposes a subsection titled “Limitations on Discovery of Electronically Stored Information”, which provides that a person may “object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost.”

However, this proposed subsection also provides that even if the objecting party makes its showing, the court may still order the discovery if the requesting party shows good cause, subject to the court’s specifications such as the requesting party’s payment of some or all of the cost of compliance with the discovery request. In determining such a motion, the court “must limit the frequency or extent of discovery otherwise allowed by these rules” (emphasis added) if it determines that the discovery is unreasonably duplicative or cumulative, can be obtained by less burdensome means, or if the burden of the discovery outweighs its likely benefit.

The Rules Committee has also proposed amendments to the rules regarding specific discovery devices. The option to produce records in response to interrogatories found in Rule 1.340 has been proposed to include ESI, providing that any such ESI “shall be produced in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms.” Rule 1.350 regarding production of documents has a proposed amendment that its scope be expanded to cover ESI, and providing that a request for ESI may specify the form or forms in which the ESI is to be produced, with the responding party having the right to object to a requested form. If no form is specified in the request, the responding party must produce the ESI “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”

The proposed amendment to the sanctions rule, Rule 1.380, is of considerable note. The proposed change adds a new subsection to Rule 1.380, which reads “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” This proposed rule clearly anticipates the routine data maintenance procedures pursuant to which many institutions delete certain records on a regularly scheduled basis and imposes a considerable burden on a party who seeks sanctions based upon the deletion of such ESI. Despite this standard, the good-faith provision should serve to prevent the abuse of this rule.

Lastly, Rule 1.410 regarding subpoena contains proposed amendments identical to portions of the proposed changes to Rules 1.280 and 1.350. Namely, it incorporates the provisions of the proposed Rule 1.280 that a person to whom the subpoena is directed may move to quash the subpoena on the grounds of the ESI not being readily accessible because of cost or burden, with the caveat that the court may still order production subject to conditions such as the requesting party’s payment of some or all of the cost of compliance with the subpoena. The proposed subpoena rule also provides that in the event the subpoena does not specify a format, the responding person must produce the ESI in the form in which it is ordinarily maintained or in another reasonable form or forms.

RumbergerKirk will follow the status of these proposed amendments and provide an update upon the Court’s ruling.