Seeking order for electronic evidence
By Roberta O. Roberts (4JM)
The switch to electronically stored information has been such a game-changer that the Federal Civil Rules of Procedure were amended in 2006 to include rules for preserving, obtaining and defi ning electronic information.
Last year, The Florida Bar Civil Procedures Rules Committee submitted its own version of e-discovery amendments. Amendments to the Florida Civil Rules of Procedure have been turned over to the Florida Supreme Court for review.
Kevin Johnson (JD 94), chair of The Florida Bar Civil Procedures Committee and partner in Thompson, Sizemore, Gonzalez & Hearing, P.A., is spearheading that effort.
“Issues have been addressed by federal courts over the last five years that have created a body of case law on how to deal with things like production, preservation and cost-shifting. We don’t have any rules in state court that currently refl ect this,” Johnson said.
The Florida Bar committee proposed the amendments because courts want to know what federal precedents they should follow or whether to make up standards on their own, Johnson said. During the March 7 oral argument, Florida Supreme Court Justice R. Fred Lewis asked how the new rules would eliminate sometimes “silly battles” that line judges may have to decide. Johnson noted that the proposals will give judges better guidance on how to deal with e-discovery disputes, while still allowing enough fl exibility to deal with unusual situations.
Justices also expressed concern over the differences between federal and state law on some e-discovery issues. Johnson cited the Florida standard on preservation of e-discovery as an example of the confusion.
“People who have studied it said it is a very weak standard for when a party has a duty to start preserving data — the federal standard is better,” Johnson said.
The federal standard says electronic information should be preserved when litigation can be reasonably anticipated. Florida’s standard says the duty to preserve the information begins when litigation actually starts. “It is a very confusing standard for Florida lawyers to deal with,” Johnson said.
However, the Civil Procedures Rules Committee was unable to address pre-litigation preservation because it is arguably outside the scope of the rules, Johnson said.
The proposed rule changes are designed to:
- Make sure parties understand that electronically stored information is covered by the rules. – Give parties a fair and reasonable method to resolve disputes over whether and how electronically stored information should be produced. – Give judges baseline standards to use in resolving arguments over the discoverability of electronically stored information . – Provide clarity to litigants about whether they could expect Florida to apply rules similar to those used in federal courts.
The courts need the rules for better guidance and litigators need them to better advise clients, Johnson said.
The need was considered so great that the proposed e-discovery amendments were submitted to the Supreme Court on an expedited basis.
“We needed to have a consistent set of rules that would give people a framework so that they could start to, No. 1, set up discovery properly; No. 2, end any disputes over form of production and, No. 3, protect the people who have to respond to third-party subpoenas and make sure that if they are asked to produce a large body of electronic information that there is a process where the court has authority to shift burden and costs appropriately,” Johnson said.
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