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Floridas E-Discovery Rules

John M. Barkett Shook, Hardy & Bacon L.L.P. Miami, Florida

TABLE OF CONTENTS The Meet and Confer ........................................................................................................................................ 2 Case Management ................................................................................................................................................ 4 Scope of Discovery .............................................................................................................................................. 5 Discovery Into Inaccessible Sources of Electronically Stored Information Under Rule 1.280(d) ....................... 5 Answering Questions Under Rule 1.340 by Reference to Electronically Stored Information ............................. 9 Request for Electronically Stored Information Under Rule 1.350 ..................................................................... 10 Protection from Sanctions Under Rule 1.380(e) ................................................................................................ 11 Discovery of Electronically Stored Information From Nonparties Under Rule 1.410 ....................................... 13 Under Rule 1.285, Asserting Claims of Privileged or Work Product Protection After Production ................... 13 Conclusion.......................................................................................................................................................... 14 About the Author................................................................................................................................................ 15 John M. Barkett .............................................................................................................................................. 15

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Floridas E-Discovery Rules


John M. Barkett Shook, Hardy & Bacon L.L.P. Miami, Florida

On July 5, the Florida Supreme Court adopted e-discovery amendments to the Florida Rules of Civil Procedure, mimicking in part the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.1 The rules go into effect on September 1, 2012. This paper describes the changes made to the Florida Rules and highlights differences between them and their federal counterparts.

THE MEET AND CONFER


Florida does not have a meet and confer requirement comparable to Rule 26(f), except in complex litigation. If the Florida circuit court declares an action complex, then Rule 1.201 now provides that attorneys for the parties shall confer and produce a joint statement that states the possibility of obtaining agreement regarding the extent to which electronically stored information (ESI) should be preserved, the form of production, and whether discovery of ESI should be conducted in phases or limited to particular individuals, time periods, or sources.

How does an action become complex under the Florida Rules? Rule 1.201(a)(1) provides that a complex action is one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite the action, keep costs reasonable, or promote judicial efficiency. In deciding whether an action is complex, the court must consider whether the action is likely to involve:
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See http://www.uscourts.gov/rules/Reports/ST09-2005.pdf (hereafter Revised Rule). The Standing Committee approved the Report of the Advisory Committee on the Federal Rules of Civil Procedure dated May 27, 2005 (revised July 25, 2005) (hereafter, Advisory Committee Report). The Advisory Committee Report can be found at Appendix C in the above link (page 86 of 332) and is cited here as Rules App. C-_. The Supreme Court accepted the revisions and transmitted them to Congress on April 12, 2006. http://www.uscourts.gov/rules/newrules6.html. Congress had seven months within which to act as provided by law but did not act, so the revised rules went into effect on December 1, 2006. 28 U.S.C. 2074. See, generally, http://www.uscourts.gov/rules/#standing0106. For an analysis of the 2006 e-discovery amendments, see Barkett, Help Has ArrivedSort Of: The E-Discovery Rules, (Florida Bar, Basic Federal Practice 2011, April 13-14, 2011).

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(A) numerous pretrial motions raising difficult or novel legal issues or legal issues that are inextricably intertwined that will be time-consuming to resolve;

(B) management of a large number of separately represented parties; (C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court;

(D) pretrial management of a large number of witnesses or a substantial amount of documentary evidence;

(E) substantial time required to complete the trial; (F) management at trial of a large number of experts, witnesses, attorneys, or exhibits; (G) substantial post-judgment judicial supervision; and (H) any other analytical factors identified by the court or a party that tend to complicate comparable actions and which are likely to arise in the context of the instant action.

Florida Rule 1.201(a) explains the procedure for having a matter declared complex: At any time after all defendants have been served, and an appearance has been entered in response to the complaint by each party or a default entered, any party, or the court on its own motion, may move to declare an action complex. However, any party may move to designate an action complex before all defendants have been served subject to a showing to the court why service has not been made on all defendants. The court shall convene a hearing to determine whether the action requests the use of complex litigation procedures and enter an order within 10 days of the conclusion of the hearing. However, under Rule 1.201(a)(3), a hearing is not required if all of the parties, pro se or through counsel, sign and file with the clerk of the court a written stipulation to the fact that an action is complex and identifying the factors in (2)(A) through (2)(H) above that apply. Under these circumstances, the court shall enter an order designating the action as complex without a hearing.2

If an action is declared complex, however, the Florida rule is much more specific than the Federal rule, which makes no reference to discussing phased production of ESI, or limitations as to particular individuals, time periods, or sources. Rather, the discovery plan contemplated by Rule 26(f)(3) is designed to provide the district court with the parties views and proposals concerning:

If an action is declared complex, Rule 1.201(b) requires the court to hold an initial case management conference within 60 days of the order declaring the action complex.

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(C) any issues about disclosure or discovery of electronically stored information,3 including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation material, including if the parties agree on a procedure to assert such claims after production whether to ask the court to include their agreement in an order. It should be obvious, however, that most Florida lawsuits are not going to be declared as complex under these standards. Thats where the committee note Rule 1.280 might have an impact. It states The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a rule 1.200 or rule 1.201 case management conference.

(Emphasis added.) This note seems to be a through the back door effort to create a meet-and-confer session in noncomplex litigation since the use of also in the second sentence means that noncomplex cases are the subject of the first sentence. Since this comment is in a note and not in a rule, it may not have much of an impact. Nonetheless, lawyers who want to prompt a meet-and-confer session in noncomplex litigation can cite to this note text.4

CASE MANAGEMENT
In the Federal rules, the district court is required to issue a Rule 16(b) scheduling order after consulting with the parties attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means. Rule 16(b)(3)(B) permits the Rule 16 scheduling order to: (iii) provide for disclosure or discovery of electronically stored information; and (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced.

Under Floridas Rule 1.200, even in noncomplex cases, a court may order parties to convene a case management conference or a party may by serving a notice, convene such a conference. If a conference is held, the court may
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Electronically stored information is not defined with any precision in the Florida or Federal rules. The Advisory Committee on Civil Rules used the Committee Note under Rule 34(a) as the vehicle to communicate this message with respect to all references to electronically stored information in Rules 16, 26, 33, 34, or 37. The Committee Note to Rule 34(a) explains, Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments. It then states: References elsewhere in the rules to electronically stored information should be understood to invoke this expansive approach. A companion change is made to Rule 33(d), making it explicit that parties choosing to respond to an interrogatory by permitting access to responsive records may do so by providing access to electronically stored information. More generally, the term used in Rule 34(a)(1) appears in a number of other amendments, such as those to Rule 26(a)(1), 26(b)(2), 26(b)(5)(B), 26(f), 34(b), 37(e) and 45. In each of these rules, electronically stored information has the same broad meaning it has under Rule 34(a)(1). References to documents appear in discovery rules that are not amended, including Rules 30(f), 36(a), and 37(c)(2). These references should be interpreted to include electronically stored information as circumstances warrant. Rules App. C-74-75. Presumably, Florida courts will interpret ESI in a similar manner. It also remains to be seen whether parties with complex e-discovery issues seek a complex litigation designation as a means to focus the courts attention on the issues and whether such requests themselves become the subject of extensive motion practice.

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(5) 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;

(6) consider the need for advance rulings from the court on the admissibility of documents and electronically stored information; {and} (7) 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. This text is more expansive and specific than the comparable language in Rule 16. This text also suggests that lawyers should confer before the case management conference to be prepared to discuss these issues. Florida judges do not have a large group of magistrate judges to handle discovery issues5 and many federal magistrate judges have become e-discovery experts able to resolve e-discovery issues rapidly and costeffectively. Hence, how quickly Florida judges climb the learning curve to be able to hold meaningful case management conferences that address e-discovery issues will impact the efficacy of these changes to Rule 1.200.

SCOPE OF DISCOVERY
Floridas new Rule 1.280(b)(3) provides that a party may obtain discovery of ESI in accordance with these rules. There is no comparable provision in Rule 26.

DISCOVERY INTO INACCESSIBLE INFORMATION UNDER RULE 1.280(d)

SOURCES

OF

ELECTRONICALLY

STORED

In federal court, normally the producing party pays for the cost of production. A considerable body of ediscovery case law has developed, however, challenging this presumption. Typically, cost-shifting relates to demands for production of inaccessible electronically stored information. It can be quite expensive to search and retrieve responsive documents from thousands of backup tapes. In essence, in deciding whether to shift costs, courts have balanced the likelihood of finding responsive information, the importance of the information to the issues in controversy, the availability of the information from other sources, and the costs of the search.

Floridas Rule 1.280(d) addresses this topic. The amendment is entitled, Limitations on Discovery of Electronically Stored Information, and provides:

Under Fla. R. Civ. P. 1.490, judges of the circuit courts in Florida may appoint as many general magistrates from among the members of the Bar in the circuit as the judges find necessary. However, under Rule 1.490(d), no reference to a general magistrate may be made without consent of the parties.

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(1) 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. On motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order the discovery from such sources or in such formats if the requesting party shows good cause. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery.

(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

For a comparison, Rule 26(b)(2)(B), the focal point of the cost-shifting case law under the Federal Rules establishes this guidance for the district courts: A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Rule 26(b)(2)(C) provides in pertinent part: On motion or on its own, the court must limit the frequency or extent of discovery methods otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. The Florida text is slightly more beneficial to producing parties than the equivalent federal rule. The Florida rule makes specific references to formats and to ordering cost shifting.

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The Federal Rules limitations on discovery apply to any discovery. Under Federal Rule 26(b)(1), All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). Florida Rule 1.280(b)(1), the equivalent to Federal Rule 26(b)(1), does not have a comparable limitation built into it. So Floridas new Rules 1.280(d) borrows subparagraphs (i) and (iii) from Federal Rule 26(b)(2)(C) but applies these limitations only to ESI, not all discovery. Since most information today will be produced in electronic form, the distinction may not matter in most litigation.6 Federal Rule 26(b)(2)(B) provides a framework for good cause that results in ordering discovery of ESI that is not reasonably accessible because of undue burden or cost. It tells the district courts that in evaluating whether good cause has been shown they should consider the limitations of Rule 26(b)(2)(C). Florida Rule 1.280(d)(1) does not specifically tie good cause to any particular factors for consideration as Rule 26(b)(2)(B) does. Rather, as explained above, Rule 1.280(d)(2) says that for a motion involving discovery of any ESIwhich would include a motion arguing that good cause exists to obtain information that is not reasonably accessible because of burden or costthe circuit courts must limit the extent or frequency of discovery if the court determines that any of the conditions in Rule 1.280(d)(2) have been satisfied. In addition to suggesting that the parties confer, as discussed earlier, the Florida Rules committee note for Rule 1.280 amendments provides: Under the good cause test in subdivision (d)(1), the court should balance the costs and burden of the requested discovery, including the potential for disruption of operations or corruption of the electronic devices or systems from which discovery is sought, against the relevance of the information and the requesting partys need for that information. Under the proportionality and reasonableness factors set out in subdivision (d)(2), the court must limit the frequency or extent of discovery if it determines that the discovery sought is excessive in relation to the factors listed.

In cases involving small amounts of electronically stored information or where the ability to search electronically is not material to either party and there is a manageable volume of ESI, it may be less expensive for counsel to agree to print the ESI and produce it in hard copy. That might explain the results of the 2009 Federal Judicial Centers survey of closed cases. Lee and Willging, Federal Judicial Center National, Case-Based Civil Rules Survey (October 2009) available at http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf. Nearly 60% of the respondents also said that the Rule 16 conference did not include discussion of electronically stored information. Id., Figure 5, p. 15. In perhaps suggesting that electronically stored information was not a focal point of many of the cases in the survey, 80% of plaintiff-attorney respondents and nearly 60% of defendant-attorney respondents said that their clients did not place a litigation hold on deletion of ESI in anticipation of litigation or in response to filing of the complaint (63% and 37% respectively), or did not say in their response whether this preservation step had occurred (18.3% and 22.4% respectively). Id., Figure 6, p. 19. In addition, 54.1% of the plaintiff attorneys and 59.1% of the defendant attorneys reported that no party requested production of electronically stored information. Id., Figure 7, p. 20. The surveyed population consisted of lawyers in federal civil cases terminated in the last quarter of 2008. Id., p. 5. There were just over 2,600 respondents, 2,371 of which reported one or more types of discovery had occurred in the closed cases. Id., p. 7, n.4, Table B-1, p. 79. The Delaware Court of Chancery Guidelines For Preservation of Electronically Stored Information permits parties and their counsel to agree with opposing parties and their counsel to limit or forgo the discovery of ESI. The Guidelines add that whether or not parties enter into such an agreement, it is beneficial for parties and their counsel to confer regarding the preservation of ESI early in the litigation. http://www.delawareediscovery.com/uploads/file/Court%20of%20Chancery%20Guidelines%20re%20Preservation%20of%20Elect ronically%20Stored%20Information%20(1-18-11).pdf This part of the Guideline is also likely motivated by the recognition that in some cases, it may be less expensive and faster for counsel to print ESI and then produce it. As the Guidelines point out, What steps will be considered reasonable will vary from litigation to litigation..

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In evaluating the good cause or proportionality tests, the court may find its task complicated if the parties know little about what information the sources at issue contain, whether the information sought is relevant, or how valuable it may be to the litigation. If appropriate, the court may direct the parties to develop the record further by engaging in focused discovery, including sampling of the sources, to learn more about what electronically stored information may be contained in those sources, what costs and burdens are involved in retrieving, reviewing, and producing the information, and how valuable the information sought may be to the litigation in light of the availability of information from other sources or methods of discovery, and in light of the parties resources and the issues at stake in the litigation.

The Federal Rules do not refer to the limitations on discovery in Rule 26(b)(2)(C) as representing proportionality although recent cases do use this term in describing these limitations.7 The roadmap in this committee note will put a premium on preparation and learning about a clients ESI architecture. It may also create a burden for producing parties that does not exist under the Federal rules. In the Federal system, producing parties should be able to dictate how they wish to produce ESI. This committee note text may prompt judges to allow discovery with respect to the thoroughness of a partys ESI production before there is any indication that the partys e-discovery efforts are unreasonable. Why? This note appears to have been written originally to limit discovery with respect to sources of ESI not reasonably accessible because of burden or cost, but the text of Rule 1.280(d)(2) is not limited to just this type of inaccessible ESI. Rather Rule 1.280(d)(2) applies to all ESI.

Hence, a state court judge might be confronted with a requested limitation on discovery of accessible ESI. That request them might be met with a response that invokes this new comment to Rule 1.280(d)(2) and a demand that seeks sampling of sources or discovery about what ESI may be contained in those sources, what costs and burdens are involved in producing ESI, and how valuable the information may be. To illustrate, if a producing party wants to limit e-discovery to five custodians, can a requesting party invoke this committee note to obtain discovery from other custodians to show that the requesting party should be allowed to obtain discovery from additional custodians because it would still be proportional? This note has the potential for unintended consequences if it is used to allow discovery on a partys proposed limitations on e-discovery to test the reasonableness of the proposed limitations before any production has actually been made.8 The Florida and Federal Rules both use the word identify: the producing party must identify the sources of electronically stored information that are not reasonably accessible because of (undue) burden or cost. The Florida note does not illustrate the types of data that may fall into this category. The Advisory

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See, for example, Da Silva Moore v. Publicis Groupe & MSL Group, 2012 U.S. Dist. LEXIS 23350, *15 (S.D.N.Y. Feb. 24, 2012). See Barkett, The 7 Circuit Pilot Project: What We Might Learn And Why It Matters to Every Litigant in America, .http://apps.americanbar.org/litigation/litigationnews/civil_procedure/docs/barkett.december11.pdf, (ABA Section of Litigation News Online, December 11, 2011), p. 24-27 (discussing the Federal Circuit Advisory Councils E-Discovery Model Order which allows cost-shifting for disproportionate ESI production requests as a way to combat far reaching e-discovery, such as mass email searches, that is often tangential to adjudicating issues in patent cases). The case law should be monitored to see how courts treat the phrase if appropriate in this comment. A reasonable limitation on e-discovery should be honored. Courts always have the authority to direct discovery in phases to be sure that requesting parties are not prejudiced should the limitation be shown to be too strict.
th

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Committees Report does give examples of sources of electronically stored information that may qualify under this standard:

Examples from current technology include back-up tapes intended for disaster recovery purposes that are often not indexed, organized, or susceptible to electronic searching; legacy data that remains from obsolete systems and is unintelligible on the successor systems; data that was deleted but remains in fragmented form, requiring a modern version of forensics to restore and retrieve; and databases that were designed to create certain information in certain ways and that cannot readily create very different kinds or forms of information.

Rules App. C-42. Presumably the Florida courts will reach similar conclusions.

ANSWERING QUESTIONS UNDER RULE 1.340 BY REFERENCE TO ELECTRONICALLY STORED INFORMATION


Federal Rule 33(d) discusses the option to produce business records in lieu of answering an interrogatory, where the answer to the interrogatory may be derived or ascertained from business records, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served. Rule 33(d) now defines business records as including electronically stored information.9 Responding parties that seek to take advantage of this provision as a means to respond to an interrogatory have to be prepared to make the electronically stored information available to the requesting party. Rule 33(d) provides that a respondent has to specify the records from which the answer may be derived and afford the proponent of the interrogatory reasonable opportunity to examine the records and to make copies, compilations, abstracts, or summaries. It also provides that a specification must provide sufficient detail to enable the interrogating party to locate and to identify the records that must be reviewed as readily as the responding party. Access to hardware, software, technical support, passwords, source code, or other assistance may be necessary to satisfy this burden.

The Committee Note to revised Rule 33(d) recognizes these obstacles. A party that wishes to invoke Rule 33(d) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. In that situation, the responding partys need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke Rule 33(d). Rules App. C-69-70. In Florida Rule 1.340, the Supreme Court has added the words including electronically stored information in subparagraph (c) as well as a new last sentence, so that Rule 1.340 now reads:
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As noted earlier, and repeated in the Committee Note to Rule 33, The term electronically stored information has the same broad meaning in Rule 33(d) as in Rule 34(a). Rules App. C-69. I discuss revised Rule 34(a) below.

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When the answer to an interrogatory may be derived or ascertained from the records (including electronically stored information) of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries is a sufficient answer. An answer shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or shall identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced. If the records to be produced consist of electronically stored information, the records shall be produced in a form or forms in which they are ordinarily maintained or in a reasonablyusableformorforms. The last sentence of Rule 1.340 does not appear in Rule 33(d). There may be situations where a responding party will prefer to answer an interrogatory by making electronically stored information available to allow the requesting party to derive or ascertain the answer to the interrogatory. It may also be the case that the ESI produced under Rule 1.340 is also ESI that is sought in a request for production under Rule 1.350. The difference, of course, is that under Rule 1.340, the responding party must provide sufficient detail to permit the inquiring party to locate and identify as readily as the responding party the records from which the answer may be derived or ascertained. The responding party must also identify a person or persons to be available to assist the requesting party in locating and identifying the ESI at the time the ESI is produced. And we know from the last sentence of Rule 1.340 that if ESI is provided from which an interrogatory answer is to be derived or ascertained, it must be produced in the form in which it is ordinarily maintained or a reasonably usable form. Given these obligations, it might be easier in many cases just to answer the interrogatory.10

REQUEST FOR ELECTRONICALLY STORED INFORMATION UNDER RULE 1.350


Under Rule 1.350 documents now includes ESI. documents and ESI are distinct.11 Compare the two: Federal Rule 34 (documents or ESI) suggests that


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Rule 33(d) does not permit a data dump. Reedhycalog UK, Ltd. v. United Diamond Drilling Services, Inc., 2008 U.S. Dist. LEXIS 93177 (E.D. Tex. Oct. 3, 2008) (rejecting effort to use Rule 33(d) for a production of 750 gigabytes of data, which allegedly included baby pictures, audio files, and pornography, as gamesmanship and an instruction to go fish). Federal courts treat ESI as included within a request for documents so this distinction is not necessarily material. Nonetheless, careful lawyers will remain mindful of the wording of Rule 34 in drafting requests for production.

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Rule 1.350(a): Any party may request any other party (1) to producedocuments, including electronically stored information,

Rule 34(a)(1)(A): A party may servea request (1) to produceany designated documents or electronically stored information

Under both the Florida and Federal rules, a request can specify the form of production. The producing party can object,12 or if no form is specified, specify the form it intends to use. Under the Federal rule, a producing party must only produce in one form. There is no comparable language in the Florida rule. Florida also provides that if a form is not specified by a requesting party, the producing 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 Federal rule is similar.

PROTECTION FROM SANCTIONS UNDER RULE 1.380(e)


Florida adopted Federal Rule 37(e): Absent 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. The Federal rule has not provided a

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A requesting party might be seeking documents in native format. A producing party may prefer to produce in Tagged Image File Format (TIFF) or Portable Document Format (PDF) where the text would still be searchable but the native file could not be modified. Also, one can easily see how different types of documents might be the subject of different format requests. A database file may be treated differently from a spreadsheet or a word processing document. As long as search features are preserved, and there is an agreement on metadata fields that should reasonably be included in the production, the production format should not be the subject of meaningful contention. But here again, the absence of a meet-and-confer provision in the Florida rules in noncomplex cases suggests that lawyers need to take the initiative to address production format issues up front to avoid debate and delay later.

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meaningful safe harbor to anyone. It remains to be seen whether the Florida rule will, especially since the duty to preserve under Florida law is not necessarily the same as the duty to preserve under federal law.13

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Florida preservation law is a bit muddled. See Osmulski v Oldsmar Fine Wine, Inc., 2012 WL 2470126 (Fla. App. 2 Dist. June 29, 2012). This matter involved alleged spoliation due to the failure to preserve video surveillance recordings. The trial court held there was no duty to preserve the videos because defendant was never asked to preserve them. On appeal, appellant argued that the claim was reasonably foreseeable and, therefore, there was a duty to preserve. The appellate court affirmed. One could argue that the affirmance was driven largely by the nature of the evidencevideo surveillance tapesbecause the Second District talked about the uncertainties associated with video technology as it relates to the resolution of legal disputes. The Second District explained that recording systems may vary in quality; methodologies may be different; and some tapes may be erased automatically and others manually. It added that some tapes might not even be within the control of the ultimate defendant and they may nor may not contain information critical to the civil action. Hence, the appellate court said it would be unfair to businesses or homeowner to require them to preserve video evidence in the absence of a written request to do so. The appellate court went on to explain why, even if the standard were different, the plaintiff was not entitled to a spoliation instruction. Florida does not recognize a first party spoliation tort. Martino v. Wal-Mart Stores Inc., 835 So. 2d 1251, 1255-56 (Fla. 4th DCA 2003) affd 908 So.2d 342 (Fla. 2005) held that there is no independent cause of action for spoliation against a party accused of spoliating evidence. The Florida Supreme Court determined that sanctions are an adequate remedy to address such spoliation. It elected not to address third party spoliation claims, however. Two justices specially concurred. They argued that the district court of appeals decision (allowing an adverse inference instruction for the loss of an allegedly defective shopping cart that caused the injury and a videotape of the parking lot where the accident occurred) should be quashed since suit was not filed for two years after the accident and during that two-year period, no court order or discovery rule required Wal-Mart to maintain or preserve the cart or videotape. Id. at 348 (Wells, J. specially concurring). Justice Wells specifically noted the burden that prelitigation preservation would impose on business (Obviously, storage space, both in warehouses and in computers, have (sic) finite limits. Practically, what was Wal-Mart to do when it was notified by Martino in March 1997? Was Wal-Mart to take the cart out of service? Was Wal-Mart to store the cart? How many warehouses would it take to store all of the property involved in the fouryear statute of limitations period when Wal-Mart receives a notice of a possible claim?). Id. at 349. He specifically was concerned about the burden associated with storage of electronic documents. Id. at 349, n.3 (quoting from Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561, 623-25 (2001)). In Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001), plaintiff claimed to have been injured by a Coca-Cola bottle that exploded. In July 1991, plaintiffs attorney wrote to Publix notifying it of the claim. The attorney did not request that Publix preserve the bottle. The store was subsequently closed and the bottle discarded before suit was brought in 1994. Publixs manager prepared an incident report on the date of the accident. Publix refused to give a copy of the incident report to the plaintiff on work product grounds. The trial court held that these two acts evidenced Publixs anticipation of litigation and therefore the necessity of preserving the instrumentality of the injury, the bottle. Hence, plaintiff brought a third party spoliation of evidence tort claim against Publix claiming that the loss of this evidence hampered plaintiff in her ability to recover from The Coca-Cola Company. The trial court ultimately directed a verdict on this claim against plaintiff recollecting incorrectly that plaintiffs expert had testified he did not need the bottle to express his opinions. Even though plaintiff settled the claim against The Coca-Cola Company, the Fourth District reversed holding that it was error to direct the verdict since plaintiff was entitled to show she would have recovered more than the settlement amount. Because of the directed verdict, the trial court had refused to issue an adverse inference instruction even though it had earlier held it would do so as a sanction against Publix for failing to maintain the bottle. The Fourth District held that the trial court could reconsider this issue anew based on the evidence presented. Id. at 1091-92. I am assuming that the case settled again. The district court in Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1313 (N.D. Fla. 2002) surveyed Florida law at the time and observed: Thus, no common law duty to preserve evidence (absent some form of notice) currently exists in Florida law. The district court ended up, however, having to distinguish Hagopian as holding that the Fourth District had determined a duty to preserve based on the work product claim and the creation of the incident report, facts not present in Silhan. But the Fourth District in its analysis in Hagopian did not comment on the bases for the trial courts determination that Publix had a duty to preserve the bottle. Silhans survey included Pennsylvania Lumbermans Mut. Ins. Co. v. Florida Power & Light Co., 724 So. 2d 629 (Fla. 3d DCA 1999) which Silhan decided to follow. But this case actually appears to be a case involving an independent tort claim for spoliation (not allowed any longer under Martino). Whatever it was about, this case does state that in the absence of a statutory or contractual duty to maintain or preserve evidence, there is no common law duty to preserve evidence, at least in the absence of notice of a possible legal action in connection with the evidence sought to be preserved. Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843 (Fla. 4th DCA 2004) reached the same conclusion. This was an action brought by a boatowners insurer. The Court of Appeal refused to find that a marina had a duty to preserve fire debris collected by fire inspectors and stored in barrels at the marina after the inspectors investigation of a fire on a boat docked at the marina. In this case, a boat fire occurred at a marina. The boat insurer paid the claim. Fire inspectors collected debris from the fire and placed them in barrels. Shortly thereafter, the marina owner discarded the barrels. The boat insurer later sued the marina claiming it had a common law duty to preserve the debris without which the insurer could not prove the exact cause of the fire and who might be responsible. Under these circumstances, the Fourth District held that prior Florida case law did not establish a duty to preserve evidence when litigation is merely anticipated. Id. at 846. It will be interesting to see whether the new Florida e-discovery rules prompt a review of federal court cases finding a duty to preserve in a prelitigation setting for loss of electronically stored information and eroding the current common law case law in Florida as a result.

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DISCOVERY OF ELECTRONICALLY STORED INFORMATION FROM NONPARTIES UNDER RULE 1.410


The Florida subpoena rule (1.410) has now been conformed to the changes set forth above for production of documents. The Federal rules do the same.

UNDER RULE 1.285, ASSERTING CLAIMS OF PRIVILEGED OR WORK PRODUCT PROTECTION AFTER PRODUCTION
The Florida Rules Amendment from July 5, 2012 did not address the topic of what to do when a privileged document is inadvertently produced because this topic was already addressed in a January 1, 2011 amendment.

Federal Rule 26(b)(5)(B) provides that If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. In addition to giving notice, the producing party must preserve the information until the claim is resolved. Upon receipt of this notice, the receiving party under Rule 26(b)(5)(B) is obliged to promptly return, sequester, or destroy14 the specified information and any copies it has and must not use or disclose the information until the claim is resolved. The receiving party may also promptly present the information to the court under seal for a determination of the claim.15 And if the receiving party already disclosed the information before being notified of the claim of privilege, it must take reasonable steps to retrieve it.

Florida Rule 1.285 is similar but more extensive than its analog federal rule. It allows a party to assert a claim of privilege after an inadvertent production of privileged information. The party must act within 10 days of actually discovering the inadvertent disclosure. The party shall serve written notice of the assertion of privilege on the recipient. The notice must specify with particularity the materials as to which the privilege is asserted and the date on which the inadvertent disclosure was actually discovered. The recipient then must promptly return, sequester, or destroy the information specified in the notice, along with any copies and shall give notice to others to whom it has disclosed the information of the claim of privilege. The recipient must also take reasonable steps to retrieve the materials disclosed to others. The recipient then may challenge the claim of privilege by providing notice within 20 days of service of the original notice from the producing party. Once the court determines the challenge to the claim of privilege, it must also direct what shall be done with the materials and any copies so as to preserve all rights of appellate review.


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The option to sequester or destroy the information was included in part because the receiving party may have incorporated the information in protected trial-protection materials. Committee Note, Rules App. C-59. In presenting the question to the district court, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility. Committee Note, Rules App. C-59.

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CONCLUSION
Florida courts will likely look to federal decisions for guidance in interpreting comparable text. Because federal decisions do not necessarily agree on every interpretation or application of the federal e-discovery rules,16 the Florida case law should be monitored carefully to evaluate how Florida courts take federal case law into account. Floridas duty-to-preserve case law may also present reasons to distinguish federal decisions where the doctrine on inherent authority is used to address a failure to preserve ESI in a prelitigation context. Unless general magistrates are appointed and parties agree to refer e-discovery matters to them, the inability to receive assistance from magistrate judges will also impose a larger burden on Florida judges who may not have the time to address thorny e-discovery issues. The appointment of special masters may become more extensive in Florida courts as a result.

Florida introduces into the text of its Rules the topics of phased discovery of ESI or limitations on ESI based on particular individuals, time periods, or sourcesa direction that the Federal rules or federal courts are moving in.17 This specific language should encourage Florida courts to consider proportionality and reasonableness in meaningful ways in managing e-discovery. Such text and the encouragement in the Rules and committee notes to foster communication among counsel should, in an ideal world, at least, minimize the contentiousness that sometimes accompanies e-discovery.18 In the end, Florida Rule 1.010, like Rule 1, mandates that the rules of civil procedure should be construed to secure the just, speedy, and inexpensive determination of every action. As long as Florida judges keep their eye on that ball, remain engaged, and stay focused on reasonableness and proportionality, and as long as lawyers do the same, the Florida rules should improve the process of litigation in Florida.


16 17

See Barkett, E-Discovery: Twenty Questions and Answers, (Chicago: First Chair Press, 2008) See Barkett, The 7 Circuit Pilot Project: What We Might Learn And Why It Matters to Every Litigant in America (ABA Section of Litigation News Online, December 11, 2011) http://apps.americanbar.org/litigation/litigationnews/civil_procedure/docs/barkett.december11.pdf See Barkett, Walking the Plank, Looking Over Your Shoulder, Fearing Sharks Are in the Water: E-Discovery in Federal Litigation? (Duke 2010 Conference, Civil Rules Advisory Committee, May 11, 2010) (http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/John%20Barkett,%20Walking%20the%20Pl ank.pdf)
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ABOUT THE AUTHOR


John M. Barkett

Mr. Barkett is a partner at the law firm of Shook, Hardy & Bacon L.L.P. in its Miami office. He is a graduate of the University of Notre Dame (B.A. Government, 1972, summa cum laude) and the Yale Law School (J.D. 1975) and served as a law clerk to the Honorable David W. Dyer on the old Fifth Circuit Court of Appeals. In March 2012, the Chief Justice appointed Mr. Barkett to serve on the Advisory Committee for Civil Rules of the Federal Judicial Conference. Mr. Barkett is an adjunct professor of law at the University of Miami School of Law. He is also the recipient of one of the 2011 Burton Awards for Legal Achievement which honors lawyers for distinguished legal writing. Mr. Barkett is also a former member of the Council of the ABA Section of Litigation.

Mr. Barkett has, over the years, been a commercial litigator (contract and corporate disputes, employment, trademark, and antitrust), environmental litigator (CERCLA, RCRA, and toxic tort), and, for the past several years, a peacemaker and problem solver, serving as an arbitrator, mediator, facilitator, or allocator in a variety of environmental, commercial, or reinsurance contexts. He is a certified mediator under the rules of the Supreme Court of Florida and the Southern and Middle Districts of Florida and a member of the London Court of International Arbitration and the International Council for Commercial Arbitration, and serves on the AAA and ICDR roster of neutrals, the CPR Institute for Dispute Resolutions Panel of Distinguished Neutrals, and the National Roster of Environmental Dispute Resolution and Consensus Building Professionals maintained by the U.S. Institute for Environmental Conflict Resolution. He has served or is serving as a neutral in scores of matters involving in the aggregate more than $4 billion. He has conducted or is conducting commercial domestic and international arbitrations under AAA, LCIA, ICDR, UNCITRAL, and CPR rules and has conducted ad hoc arbitrations. In November 2003, he was appointed by the presiding judge to serve as the Special Master to oversee the implementation and enforcement of the 1992 Consent Decree between the United States and the State of Florida relating to the restoration of the Florida Everglades. He also consults with major corporations on the evaluation of legal strategy and risk and conducts independent investigations where such services are needed.

Mr. Barkett has published two books, E-Discovery: Twenty Questions and Answers, (Chicago: First Chair Press, 2008) and The Ethics of E-Discovery (Chicago: First Chair Press, 2009). Mr. Barkett has also prepared analyses of the Roberts Court the past six years, in addition to a number of other articles on a variety of topics:

More on the Ethics of E-Discovery: Predictive Coding and Other Forms of Computer-Assisted Review (forthcoming October 31, 2012 Duke Law School Conference on Da Silva Moore) The Roberts Court 2011-12: The Affordable Care Act and More (ABA Annual Meeting, Chicago, August 3, 2012) Ethical Challenges on the Horizon: Confidentiality, Competence and Cloud Computing (ABA-CLE, July 24, 2012) Un-taxing E-Discovery Costs: Section 1920(4) After Race Tire Amer. Inc. and Taniguchi (June 29, 2012) (http://www.shb.com/attorneys/BarkettJohn/UntaxingEdiscoveryCosts.pdf)

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Barkett, ABA to Tackle Technology Issues in Model Rules at August Meeting, (http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202560335059&thepage=3&slreturn =1). Law Technology News (June 25, 2012) E-Communications: Problems Posed by Privilege, Privacy, and Production (ABA National Institute on EDiscovery, New York, NY, May 18, 2012) The 7th Circuit Pilot Project: What We Might Learn And Why It Matters to Every Litigant in America (ABA Section of Litigation News Online, December 11, 2011) http://apps.americanbar.org/litigation/litigationnews/civil_procedure/docs/barkett.december11.pdf Skinner, Matrixx, Souter, and Posner: Iqbal and Twombly Revisited, 12 The Sedona Conference Journal 69 (2011) (Mr. Barkett received the Burton Award for Legal Achievement for this paper). The Challenge of Electronic Communication, Privilege, Privacy, and Other Myths, 38 Litigation Journal 17 (ABA Section of Litigation, Fall 2011) Avoiding the Cost of International Commercial Arbitration: Is Mediation the Solution? in Contemporary Issues in International Arbitration and Mediation The Fordham Papers (Martinus Nijhoff, New York. 2011) The Roberts Court 2010-11: Three Women Justices! (ABA Annual Meeting, Toronto, August 2011) The Ethics of Web 2.0, (ACEDS Conference, Hollywood, FL March 2011) The Roberts Court: Year Four, Welcome Justice Sotomayor (ABA Annual Meeting, San Francisco, August 2010) The Myth of Culture Clash in International Commercial Arbitration (co-authored with Jan Paulsson), 5 Florida International University Law Review 1 (June 2010) Walking the Plank, Looking Over Your Shoulder, Fearing Sharks Are in the Water: E-Discovery in Federal Litigation? (Duke 2010 Conference, Civil Rules Advisory Committee, May 11, 2010) (http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/John%20Barkett,%2 0Walking%20the%20Plank.pdf) Zubulake Revisited: Pension Committee and the Duty to Preserve, (Feb. 26, 2010) (http://www.abanet.org/litigation/litigationnews/trial_skills/pension-committee-zubulake-ediscovery.html) Draft Reports and Attorney-Expert Communications, 24 N.R.E. (Winter 2010) From Canons to Cannon in A Century of Legal Ethics: Trial Lawyers and the ABA Canons of Professional Ethics (American Bar Association, Chicago, 2009) The Roberts Court: Threes a Charm (ABA Annual Meeting, Chicago, August 2009) Cheap Talk? Witness Payments and Conferring with Testify Witnesses, (ABA Annual Meeting, Chicago, 2009) Burlington Northern: The Super Quake and Its Aftershocks, 58 Chemical Waste Lit. Rprt. 5 (June 2009) Fools Gold: The Mining of Metadata (ABAs Third Annual National Institute on E-Discovery, Chicago, May 22, 2009) More on the Ethics of E-Discovery (ABAs Third Annual National Institute on E-Discovery, Chicago, May 22, 2009) Production of Electronically Stored Information in Arbitration: Sufficiency of the IBA Rules in Electronic Disclosure in International Arbitration (JurisNet LLC, New York, September 2008) The Roberts Court: The Terrible Twos or Childhood Bliss? (ABA Annual Meeting, New York, August 2008) Orphan Shares, 23 NRE 46 (Summer 2008)
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Tipping The Scales of Justice: The Rise of ADR, 22 NRE 40 (Spring 2008) Tattletales or Crimestoppers: Disclosure Ethics Under Model Rules 1.6 and 1.13, (ABA Annual Meeting, Atlanta, August 7, 2004 and, in an updated version, ABA Tort and Insurance Practice Section Spring CLE Meeting, Phoenix, April 11, 2008) E-Discovery For Arbitrators, 1 Dispute Resolution International Journal 129, International Bar Association (Dec. 2007) The Roberts Court: Where Its Been and Where Its Going (ABA Annual Meeting, San Francisco, August, 2007) Help Has ArrivedSort Of: The New E-Discovery Rules, ABA Section of Litigation Annual Meeting, San Antonio (2007) Refresher Ethics: Conflicts of Interest, (January 2007 ABA Section of Litigation Joint Environmental, Products Liability, and Mass Torts CLE program) Help Is On The WaySort Of: How the Civil Rules Advisory Committee Hopes to Fill the E-Discovery Void, ABA Section of Litigation Annual Meeting, Los Angeles (2006) The Battle For Bytes: New Rule 26, e-Discovery, Section of Litigation (February 2006) Forward to the Past: The Aftermath of Aviall, 20 N.R.E. 27 (Winter 2006) The Prelitigation Duty to Preserve: Lookout! ABA Annual Meeting, Chicago, (2005) The MJP Maze: Avoiding the Unauthorized Practice of Law (2005 ABA Section of Litigation Annual Conference) Bytes, Bits and Bucks: Cost-Shifting and Sanctions in E-Discovery, ABA Section of Litigation Annual Meeting (2004) and 71 Def. Couns. J. 334 (2004) The CERCLA Limitations Puzzle, 19 N.R.E. 70 (Fall, 2004) If Terror Reigns, Will Torts Follow? 9 Widener Law Symposium 485 (2003)

Mr. Barkett is also the author of Ethical Issues in Environmental Dispute Resolution, a chapter in the ABA publication, Environmental Dispute Resolution, An Anthology of Practical Experience (July 2002) and the editor and one of the authors of the ABA Section of Litigations Monograph, Ex Parte Contacts with Former Employees (Environmental Litigation Committee, October 2002).

Mr. Barkett is a Fellow of the American College of Environmental Lawyers. At the University of Miami Law School, Mr. Barkett teaches two courses, Environmental Litigation and E-Discovery. Mr. Barkett has been recognized in the areas of alternative dispute resolution or environmental law in a number of lawyer-recognition publications, including Whos Who Legal (International Bar Association) (since 2005); Best Lawyers in America (National Law Journal) (since 2005); Legal Elite (since 2004), (Florida Trend), Florida Super Lawyers (since 2008), and Chambers USA Americas Leading Lawyers (since 2004). Mr. Barkett can be reached at jbarkett@shb.com.

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