Florida: Rules of Civil Procedure Addressing Electronic Discovery

The Florida Supreme Court has adopted amendments to its Rules of Civil Procedure addressing electronically stored information (ESI). The amendments were adopted as proposed and became effective on September 1, 2012. The new amendments bring “Florida’s rules into the 21st century,” according to Tampa attorney Kevin Johnson, who chaired the committee that drafted the rules. The rules explicitly authorize discovery of ESI and include a framework for limiting such discovery. Regarding preservation, the Florida rule mirrors its federal counterpart, providing a safe harbor for those who fail to provide ESI because of “the routine, good-faith operation of an electronic information system.” While the amendments do not include a mandatory “meet and confer” to address electronic discovery in every case, as in Federal Rule of Civil Procedure 26(f), the amendments do require the parties in “complex” civil cases to address the possibility of an agreement regarding the extent to which ESI should be preserved and the format for production. Now that Florida has joined the majority of states to amend its rules to address e-discovery, the focus will be on education for judges and attorneys alike. As Johnson recognized, “The rules are designed to make dealing with e-discovery easier, but lawyers and courts must educate themselves on the basics if they hope to use them effectively.”

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