On July 5, 2012, the Florida Supreme Court adopted seven amendments to the Florida Rules of Civil Procedure (“Fla. R. Civ. P. ___”). See In re Amendments to the Florida Rules of Civil Procedure -- Electronic Discovery, ____ So.3d ____, 2012 Fla. LEXIS 1318 (Fla. July 5, 2012). These amendments are largely modeled on the 2006 Amendments to the Federal Rules of Civil Procedure (namely, Rules 16, 26, 33, 34, 37 and 45), and are designed to encourage harmonization with federal decisions. Specifically, the seven amended rules consist of Fla. R. Civ. P. 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena).
However, while the amendments parallel the changes to Federal Rules, some contain subtle variances from their federal counterparts, that arguably operate to make the Florida rules broader and more malleable than their federal counterparts.
Some of the important provisions, and a comparison to their federal counterparts, can be summarized as follows:
1. No requirement to "meet and confer" in Florida. The “meet and confer” provisions of Fed.R.Civ.P. 26(f) are not adopted by the Florida rules. While this development might be seen as a surprising omission, Florida Rule 1.200, applicable to all Florida court divisions, provides for the a Case Management Conference to be convened by order of the Court or by a party merely serving a notice setting the conference. More importantly Rule 1.2000 specifically sets out electronic discovery matters to be discussed at the Case Management Conference, telling the parties to:
- "consider the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, and stipulations regarding authenticity of documents and electronically stored information;"
- "consider the need for advance rulings from the court on the admissibility of documents and electronically stored information;"
- "discuss as to electronically stored information, the possibility of agreements from the parties regarding the extent to which such evidence should be preserved, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources;"
Additionally in cases deemed Complex Litigation, Florida Rule 1.201 has been amended to specifically require discussion during the Case Management Conference of "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[.]"
Florida's approach thus provides flexibility to accommodate the wide variety of cases in Florida courts of general jurisdiction while providing greater guidance than found in Fed. R. Civ. P. 26(g) and Fed.R.Civ.P. 16.
2. Pre-litigation duty to preserve remains in question. Rule 1.380 adopts, verbatim, the well-known (though seldom used by courts) Fed.R.Civ.P. 37(e) safe harbor, under which sanctions cannot be awarded against a party who failed to produce ESI lost as a result of "good faith operation." The Florida Committee Note also obliquely references the duty to preserve . . . however, it does so without resolving whether there is actually a pre-litigation duty in Florida. Under federal law, a duty to preserve arises when there is "reasonable anticipation" of litigation, though the exact scope of this phrase remains to be tied down. The Florida Committee is silent as to whether any duty exists, and has left the issue to the courts to determine on a case by case basis rather than drawing any hard lines. Chances are, Florida courts will come down in line with the federal "reasonable anticipation" standard. But there is current Florida law that appears to hold that a duty to preserve arises only by statute, contract, or a request for production. Regardless of what happens on this front, however, the intentional destruction of evidence to thwart the administration of justice (either before or during litigation) does give rises to spoliation claims under Florida law.
3. ESI to be produced as "ordinarily maintained" or "reasonably usable form." Rule 1.280 further authorizes discovery of ESI, and Rule 1.350 treats ESI as a type of document whose production must be in the form ordinarily maintained, or else in a reasonable form. The important change in Rule 1.350 is that the producing party must specify before production and in the written response to the request for production what production format will be used. The requesting party can specify a format, and if the producing party objects or a format is not specified, the producing party must state the format of production it intends to use.
The great utility of this structure is that disputes as to format will surface early for judicial resolution. While the amendment does not define "reasonably usable," this will vary from case to case depending on cost and utility issues. The amended Rule 1.350 does, however, make clear that the producing party may produce as "ordinarily maintained" -- it need not take any extraordinary steps to enhance the utility of the production form by (for example) converting paper into searchable OCR text. But note that because the amended Rule does not require production in "native," only in a "reasonably usable," format, native production may or may not be the right format for the case.
4. Motions to compel inaccessible ESI permitted. Fed.R.Civ.P. 26(b)(2)(B) contains a presumptive exclusion of ESI production from inaccessible materials such as backup tapes. Amended Rule 1.280(d)(1) authorizes objections to the discovery of ESI from such inaccessible sources, requiring the objecting party to demonstrate "undue burden and cost." Even upon a showing of undue burden and cost, however, the Court may still order production on a showing of good cause, although it must consider appropriate conditions and limitations on such discovery including cost shifting.
The amended Rule 1.280(d)(2) also specifically makes proportional considerations applicable "in determining any motion involving discovery of electronically stored information." The proportionality factors courts should consider (such as the expense, the time commitment, and potential usefulness the material, and so on) are helpfully listed in Rule 1.280(d)(2) as well. These factors track Fed. R. Civ. P. 26(b)(2)(C).
5. ESI can be used to answer interrogatories. Rule 1.340 authorizes producing ESI in lieu of interrogatory answers. In doing so it spells out the form of production instead of leaving it open, as does Fed.R.Civ.P. 33.
6. Litigation holds are not mentioned. The Florida Committee Note does not mention litigation holds, but states that in determining “good faith” the court may consider any steps taken to comply with preservation obligations. Cf. W. Hamilton, Florida Moving to Adopt Federally-Inspired E-discovery Rules (Sept. 20, 2011) (arguing that “traditional Florida spoliation remedies are in play when a party intentionally destroys relevant information to thwart the judicial process – whether before or during litigation”); Michael D. Starks, Deconstructing Damages for Destruction of Evidence, 80-AUG Fla. B. J. 36 (July/August 2006) (noting that both sanctions and tort damages are available under Florida law, although "the first-party spoliation tort" has since been destroyed).
7. Inadvertent production. Effective January 2011, Florida adopted Rule 1.285 to govern the responsibilities of parties upon post-production claims of inadvertent production of privileged material. This rule is analogous to Fed.R.Civ.P. 26(b)(5)(B)'s "claw-back" provision, but broader and more comprehensive. Like the federal version, however, Florida leaves the issue of waiver to a separate proceeding.
In sum, Florida has enacted a nuanced and powerful set of e-discovery rules that provide excellent direction and authority for the management of e-discovery. The new Florida amendments are to take effect in September 2012.