In re Amendments to the Florida Rules of Civil ProcedureElectronic Discovery
Docket: No. SC11-1542
Court: Supreme Court of Florida; July 5, 2012; Florida; State Supreme Court
The Florida Bar’s Civil Procedure Rules Committee has proposed amendments to the Florida Rules of Civil Procedure to enhance the treatment of electronically stored information (ESI) in civil litigation. These amendments affect seven rules: 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), 1.380 (Failure to Make Discovery; Sanctions), and 1.410 (Subpoena). The proposals received unanimous approval from The Florida Bar Board of Governors and were published for public comment.
Key amendments include:
- **Rule 1.200**: Allows trial courts to address electronic discovery issues during pretrial conferences, including document exchanges, authenticity stipulations, and preservation agreements for ESI.
- **Rule 1.201**: Requires parties in complex cases to discuss agreements regarding the preservation and production of electronic information.
- **Rule 1.280**: Explicitly authorizes ESI discovery and introduces limitations. New subdivision (d) permits objections to ESI discovery requests based on undue burden or cost, allowing courts to order discovery if good cause is shown. Courts can impose conditions, including cost allocation.
- **Subdivision (d)(2)**: Courts must limit the scope of ESI discovery if it is deemed unreasonably cumulative, duplicative, or if its burden outweighs the potential benefit.
- **Rules 1.340 and 1.350**: Facilitate the production of ESI in response to interrogatories or requests, requiring that it be provided in its usual format or a reasonably usable form.
These amendments aim to clarify and streamline the discovery process for electronic information in civil proceedings.
Rule 1.380 has been amended to stipulate that courts cannot impose sanctions for the failure to provide electronically stored information (ESI) lost due to the routine, good-faith operation of an electronic information system, unless exceptional circumstances are demonstrated. Rule 1.410 now permits subpoenas for ESI, allowing recipients to object on grounds of undue cost or burden. If a party can prove that the requested ESI is not reasonably accessible, the court may still order the discovery if the requesting party shows good cause, in line with the limitations of Rule 1.280(d)(2). The court may also set conditions for the discovery, including potential cost allocation.
The amendments to the Florida Rules of Civil Procedure, effective September 1, 2012, include provisions for case management conferences under Rule 1.200, addressing the handling of ESI. These provisions allow for discussions on the exchange and preservation of ESI, rulings on admissibility, and the scheduling of related proceedings. New language in the rules is indicated by underscoring, while deletions are shown with struck-through text. The committee notes provided are for explanatory purposes only and are not part of the official rules.
Initial case management conferences for complex litigation must be held within 60 days of declaring an action complex. Attorneys and pro se parties are required to confer and prepare a joint statement detailing a discovery plan at least 20 days before the conference, to be filed 14 days prior. This statement should address the preservation and production of electronically stored information (ESI), referrals for neutral mediation, a preliminary trial estimate, requested dates for pretrial conferences, relevant documents and witnesses, expert witness information, and any other pertinent details for the court.
The case management order must cover all matters outlined in rule 1.200(a) and set dates for trial and pretrial conferences. It specifies deadlines for naming expert witnesses and allows parties to name additional experts if others have not identified experts in the same field. Discovery rules state that parties may obtain ESI and documents prepared in anticipation of litigation, provided they demonstrate necessity and lack of undue hardship. The court must protect against the disclosure of attorneys' mental impressions and legal theories, and a party may acquire copies of previously made statements upon request.
Rule 1.380(a)(4) addresses the award of expenses related to motions. A previously made statement is defined as a written statement signed or approved by the maker or a contemporaneously recorded verbatim recital of an oral statement.
For expert witness discovery, the following rules apply:
1. A party can use interrogatories to identify expert witnesses expected to testify, detailing the subject matter, substance of facts and opinions, and grounds for each opinion.
2. Experts disclosed may be deposed without needing a court order.
3. Discovery regarding experts includes:
- Scope of employment and compensation.
- General litigation experience, including work percentages for plaintiffs and defendants.
- Identification of other cases the expert has been involved in.
- An approximation of the expert's involvement as a witness, without disclosing exact earnings, unless under compelling circumstances.
4. Further discovery may be ordered by the court under specific restrictions.
5. Discovery from experts retained for litigation but not expected to testify requires exceptional circumstances for access.
6. The court typically mandates that the party seeking discovery compensate the expert for their time and may also require payment for expenses incurred by the opposing party in obtaining expert-related facts and opinions.
An expert witness is defined per rule 1.390(a). When a party claims privilege or protection for trial preparation materials, they must explicitly state the claim and provide a description of the withheld documents without revealing privileged information, allowing other parties to evaluate the claim.
For electronically stored information (ESI), a party can object to discovery if they deem the sources not reasonably accessible due to burden or cost. If challenged, the party must demonstrate the undue burden or cost. The court may still order discovery if the requesting party shows good cause, potentially imposing conditions, including the payment of expenses by the requesting party.
In motions regarding ESI discovery, the court must limit discovery if it finds the request to be unnecessarily cumulative or if the burden exceeds the benefit, considering various factors like case needs, resource availability, and the significance of the discovery.
Discovery methods can be employed in any sequence unless ordered otherwise by the court. A party is not required to supplement discovery responses with new information acquired after the initial response, as long as the response was complete when made.
Discovery-related documents are not to be filed with the court unless necessary for good cause, as defined by applicable rules or court orders, with compliance to Florida Rule of Judicial Administration 2.425. The court has the authority to impose sanctions for violations of these filing rules.
Amendments from 2012 emphasize the necessity for parties to discuss the preservation and production of ESI early in the process and highlight the court's consideration of costs, burden, and relevance when determining discovery requests. The court is instructed to limit excessive discovery based on proportionality and other specified factors.
Evaluating the good cause and proportionality tests can become complex for the court if parties lack information about the contents, relevance, or value of the sources in question. To address this, the court may instruct parties to conduct focused discovery, including sampling the sources, to clarify what electronically stored information exists, the costs and burdens of retrieval, and the information's significance relative to other available sources and the parties' resources.
Regarding interrogatories, if a party can derive an answer from their records, they must specify these records and allow the interrogating party reasonable access for examination or copying. Responses must enable the interrogating party to identify the records easily or designate a representative to assist in this process. When dealing with electronically stored information, it should be provided in its ordinary format or a usable form.
Interrogatories must have space for answers, and if insufficient, additional papers may be attached. They should be served on the directed party and other involved parties, with a certificate of service filed. Answers must be served back to the original party and can be filed with the court if necessary for pending matters. Amendments to subdivision (c) clarify procedures for producing electronically stored information in response to interrogatories.
Any party may request another party to produce and allow inspection of designated documents and tangible items that fall within the scope of rule 1.280(b), which are in the possession, custody, or control of the other party. This includes electronically stored information and permits entry onto land for inspection purposes.
Requests can be served on the plaintiff post-action commencement and on other parties following service of process and initial pleadings. The request must specify items with reasonable particularity, stating the time, place, and manner for inspection. The responding party has 30 days to provide a written response, or 45 days for defendants, with the court able to adjust these timelines. Responses must indicate whether inspection will be allowed and detail any objections with reasons.
When producing documents, they should either be provided in their usual business format or matched to the request categories. Requests for electronically stored information can specify the format for production. If no format is specified or if there is an objection, the responding party must state the intended form of production. The requesting party can seek court intervention regarding any objections or failures to respond.
Unless mandated by the court, produced documents need not be filed with the response, but can be filed as per relevant judicial administration rules when required for court consideration. Amendments to subdivisions (a) and (b) have been made to clarify the handling of electronically stored information and the procedures for its production.
Rule 1.380 outlines the conditions under which sanctions may be imposed for failure to make discovery, particularly regarding electronically stored information (ESI). A court may not impose sanctions for lost ESI if it resulted from the routine, good faith operation of an electronic information system, reflecting a similar provision in Federal Rule of Civil Procedure 37(e). However, the good-faith requirement prevents parties from misusing this rule to evade discovery obligations by allowing systematic destruction of required information. Courts will evaluate good faith based on compliance efforts with court orders or preservation requests.
Rule 1.410 addresses subpoenas, allowing them to command the production of documents, including ESI. Courts may quash or modify subpoenas deemed unreasonable or oppressive, and may require the requesting party to cover reasonable production costs. If a subpoena does not specify a format for ESI, the responding party must provide it in its usual form or a usable format. Responses can include objections based on the undue cost or burden of accessing ESI. If such objections are raised, the burden is on the responding party to demonstrate the inaccessibility, after which the court may still order discovery if the requesting party shows good cause. The court may also impose conditions on the discovery process, including cost responsibilities. Additionally, a party can compel evidence production at trial by serving a notice to produce, which holds the same effect as a subpoena.
