We recently had a discussion with a client regarding the proposed changes to the Florida Rules of Civil Procedure, and of the amendments that have been approved by the Florida Bar Board of Governors, awaiting adoption by the Florida Supreme Court. Of interest to our discussion was the federal requirement of meet-and-confer (FRCP Rule 26), particularly, that the Florida e-Discovery subcommittee overwhelmingly voted against imposing such a requirement in the state rules. While noting that early, meaningful, and reasonable cooperation and communication among parties is valuable, the committee drafted the rules so as to encourage, but not require, these discussions. The compelling reasons provided were, in part, to keep discovery reasonable and cost-effective, to prevent the cost and burden of e-Discovery from being outcome determinative, and to avoid unduly favoring either requesting parties or responding parties.
While a mandatory meet-and-confer rule could cause delay in some matters, the reality of our experiences is that in an adversarial matter, spoliation can occur while parties are “voluntarily” discussing issues related to production. While the motive behind this proposed rule is sensible, the application may in fact be problematic. The court, of course, can dictate what actions should occur, and if malfeasance exists, how it might be handled. This could be a non-issue, if the parties are willing to participate within the spirit and the letter of the law, but where the potential for abuse exists, it is likely to occur. Would a mandatory meet-and-confer be of value? The subcommittee held otherwise.
Additionally, the notion that the cost and burden of e-Discovery can be outcome determinative is viable. We have seen vendor invoices from ESI productions that are onerous, and from our prospective inflated, given the methodology used. While the amount of ESI should dictate the cost, the deepest pockets often have an advantage. Is this surprising? Is this really any different that other aspects of litigation? No, not really.
Make no mistake, the proposed changes are welcomed. ESI is ubiquitous and the Florida Rules need to address the realities facing the courts regarding the frequency, the discoverability, the retrieval, review and production of ESI. Done in a thoughtful manner, everyone benefits.
To review the proposed Rule Amendments or to view the Florida Rules of Procedure visit Florida Bar Resources