eDiscovery Rules on Electronically Stored Information
Since the 2006 amendments to Federal Rules of Civil Procedure 26 and 37, state courts have struggled with the issues of whether
- to enact rules of civil procedure that directly address the discovery of electronically stored information (ESI) and, if so,
- to simply adopt provisions similar to the FRCP or create unique rules that reflected the realities of local practice.
As of the summer of 2012, 36 states had in some way amended their respective rules of civil procedure to account for the exchange of electronically stored information. However, this month two significant states — Florida and New York — undertook very different approaches when enacting e-discovery rules within their respective jurisdictions.
Florida Enacted Rules Governing Electronically Stored Information
First, the Florida Supreme Court on Sept. 1 officially enacted rules governing electronically stored information. Unlike many other states, Florida had not previously enacted any changes or amendments to its standing rules that expressly account for the discovery of ESI. Importantly, while the newly enacted rules expressly authorize the discovery of Electronically Stored Information, they do not mirror Rules 26 and 37 of the Federal Rules of Civil procedure in that they:
- do not require that the parties meet and confer to address discovery issues
- allow a party to object to a discovery request for electronically stored information and
- allow a judge to allocate e-discovery cost but
- do not set mandatory sanctions for failure to comply with ESI requirements.
The Florida Supreme Court adopted these and other provisions, which originally were presented in September 2011, in an attempt to promote cooperation between the parties, avoid abusive discovery practices, and speed discovery in the state’s large and geographically diverse court system. At the same time, several provisions of the rules — specifically including the absence of mandatory meet-and-confer requirements and sanctions — reflect the reality that many Florida lawyers practice in rural areas and may not routinely address e-discovery issues.
New York and ESI
Conversely, the New York state courts on Sept. 11 followed in the footsteps of its federal counterpart in the Southern District and enacted a model e-discovery order. The model order, which is being implemented as part of a pilot program in Part 48 of the Commercial Division of the State Supreme Court in New York County, builds upon the October 2010 amendments to New York’s civil rules that require parties to address electronic discovery issues during their pre-trial conference. Specifically, the model order, which must be submitted in every case filed in Part 48 after June 15, 2011, must be completed by the parties after they meet and confer and covers, among other things:
- cost, scope and form of production
- privilege issues and
- claw backs and other remedies for inadvertent productions.
As part of the New York order, counsel for the parties must also certify that they can competently address e-discovery issues based on sufficient knowledge of their client’s technological systems or that they brought someone to the meet-and-confer who could do so.
While the Florida rules and the New York model order represent significant steps forward in their respective jurisdictions, they also highlight important differences in discovery practice that exist from state to state. As long as these differences remain, lawyers must be well versed in each state’s distinctive rules — or engage an experienced e-discovery partner that is.