e-Discovery: What Is It and Why Amend the Florida Rules to Include It?

What do you think when you hear the word “e-discovery”?  If you are thinking about CD copies of printed PDF documents and web site screen shots, you have a lot to learn.  There is so much more a simple document can tell you when you obtain it in its native format instead of a printed sheet.  What is native you ask?  Well, we’ll get to that.  But first, we need to understand the basics of e-discovery and why it is so crucial to litigation that the Florida Supreme Court decided to amend the Florida Rules of Civil Procedure to specifically allow it.

E-discovery, or electronic discovery, deals with the exchange of information in an electronic format.  It is often referred to as electronically stored information, or “ESI.”  I know of lot of computer words may seem completely foreign to many people, especially those with no background in information technology, or “IT.”  Below is a list of some commonly used terms in the realm of e-discovery that might help those, like me, with such limited computer knowledge.

Custodian:  the individual recognized to have created or controlled an electronic file

De-Duplication/DeNISTing:  techniques for removing duplicate files from a document collection

Forensic Image:  an electronic or digital format for capturing and storing data without corrupting or altering data

Keyword Search:  the most common approach for searching document collections including keywords and Boolean strings

Load file:  the file used to import data (coded, captured or extracted data from processing) into a database; or the file used to link specific files

Metadata:  data about data; hidden from direct view, including information such as, author, recipient, creation date, modified date, and other potentially important data

Native File:  a file in its original file format that has not been converted to a digital image or other file format such as TIFF, JPEG, or PDF

OCR Text:  optical Character Recognition is software that scans paper and creates searchable text

Processing:  data must be narrowed down, converted, and prepared for review and analysis. Data must be imported into a software platform for analysis and production, which is where volumes expand greatly

Production:  data can be produced to opposing parties in a number of formats, including images like TIFF, file formats like PDF, or native formats

ESI can be gathered by requesting a complete copy of a server, an individual computer’s hard drive, or even specific pieces of software.  A forensic image is made for later review.  Obtaining electronic information for document recovery is typically done by a professional with a background in information technology or a forensic investigator.  These professionals use a method called digital forensic analysis to sort through the information contained in the electronic discovery and pinpoint specific bits of information for use in the litigation.

E-discovery is becoming more and more popular these days because the method by which people communicate with each other has significantly changed in the last twenty, ten and even five years.  Today so much communication is done by cell phone, text message and e-mail that the way we obtain and process information cannot be captured by the printed document anymore.  Even personal and networking sites, such as Twitter and Facebook, are making such a splash in the business world that obtaining information from these accounts can be crucial to certain types of litigation.  Now by no means is e-discovery a brand new or even recent concept.  But, because of the ever-evolving face of technology, the need for rules to allow for and provide guidance on e-discovery could no longer be ignored.

On July 5, 2012, the Supreme Court of Florida amended the Florida Rules of Civil Procedure to specially allow for e-discovery.  These amendments went into effect just a few days ago on September 1, 2012.  A synopsis of the amendments made is listed below.

  • Rule 1.200 (Pretrial Procedure)
    • Allows the trial court to consider various issues related to electronic discovery during a pretrial conference
    • Includes:
      •  the possibility of obtaining admissions of fact
      • the voluntary exchange of documents and electronically stored information
      • stipulations regarding the authenticity of documents and electronically stored information
      • the need for advance rulings on the admissibility of some documents or ESI
      • specifically as to electronically stored information, the possibility of an agreement between the parties regarding the extent to which such information should be preserved and the form in which it should be produced
  • Rule 1.201 (Complex Litigation)
    • Requires the parties in a complex civil case to address the possibility of an agreement between them addressing the extent to which electronic information should be preserved and the form in which it should be produced.
  • Rule 1.280 (General Provisions Governing Discovery)
    • Expressly authorizes discovery of electronically stored information
    • Adds new subdivision (d), which provides some specific limitations on discovery of ESI
    • A person may object to a discovery request seeking electronically stored information
    • On a motion to compel discovery, or a motion for a protective order, the person from whom the discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If this showing is made, the court may nonetheless order the discovery if the requesting party shows good cause.  However, the court may specify certain conditions of discovery, including ordering that some or all of the expenses incurred while complying with the discovery request be paid by the party seeking the discovery
    • The court, in addressing a motion pertaining to discovery of ESI, must limit the frequency or extent of discovery if it determines that the information 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
      • the burden or expense of the discovery outweighs its likely benefit
  • Rule 1.340 (Interrogatories to Parties) and Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes)
    • Allow for the production of electronically stored information, either as an answer to an interrogatory or in response to a specific request
    • Both provide for a party to produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form
  • Rule 1.380 (Failure to Make Discovery; Sanctions)
    • Provides that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system
  • Rule 1.410 (Subpoena)
    • Authorizes a subpoena requesting electronically stored information
    • Person receiving a subpoena may object to the discovery of the ESI. The person from whom discovery is sought must show that the information or the form requested is not reasonably accessible because of undue costs or burden. If that showing is made, the court may nonetheless order the discovery if the requesting party shows good cause
    • The court may also specify conditions of the discovery, including ordering that some or all of the expenses be paid by the party seeking the discovery

See In re:  Amendments to the Florida Rules of Civil Procedure – Electronic Discovery, No. SC11-1542 (Fla. July 5, 2012).

Before these amendments, the Florida Rules governing discovery did not specifically mention any forms of e-discovery.  But, just because the rules lacked mention of e-discovery does not mean they were not still interpreted to include it.  One of the first cases to decide whether intrusion into the opponent’s computer system was covered by the Florida Rules was Strasser v. Yalamanchi, 669 So.2d 1142 (4th DCA 1996).  In this case, the parties were doctors who had agreed to split the Plaintiff’s earnings pursuant to a written contract.  Id at 1144.  When the Plaintiff requested production of specific documents, Defendant claimed the items no longer existed as his computer had been purged of such information 3-5 times during the time period in question.  Id.  Plaintiff proffered testimony that purged information may still be retrievable by an expert in data recovery.  However, Defendant’s expert, who had actually logged into the computer, denied any ability to retrieve the data.  Id.  The court stated that a request for entry into a computer does not fit squarely with Florida Rule 1.350(a)(1).  Id.  The real issue was whether entry into the computer would provide Plaintiff with unrestricted access to all information contained within the computer, including items that may be confidential or protected by privilege.  Id at 1145.  The court, after weighing the importance of protecting confidential information even in light of the idea the defense was thwarting the discovery process, decided to remand the matter to the trial court for further investigation into whether the data was retrievable.  Id.  In essence, the court decided that access to a computer in order to search for particular production items is allowable under the rules.  However, specific precautionary measures must be taken to confirm that confidential and privileged information is not accessible by the other party.

The issue of whether a computer system was accessible for inspection by an opposing party was of first impression to the Fourth District Court of Appeals back in the mid-90’s.  These days, it is more commonplace to allow such access to computers and other electronic devices and mediums.  Florida case law is light in the area of e-discovery disputes, likely because the Florida Rules did not speak directly to the subject.  I anticipate, however, that this will change in the coming years.  So, in light of the recent changes and to assist in staving off future disputes, below are some helpful hints when pursuing or responding to e-discovery requests.

E-Discovery Tips

  • Send a preservation letter to the opposing side specifying data types, locations, individuals and the nature of evidence to be requested later during discovery.
  • Instruct clients not to review documents on their own as they could alter or destroy important information, such as metadata.
  • Work with opposing counsel to prepare a discovery plan.
  • Always ask for production of electronic information in its native format.
  • Keep your requests for electronic discovery in proportion to the case, weighing the value of the items requested against cost of production.
  • Start small, limiting your initial search to the key custodians only, then expand later if necessary.
  • Narrow your search:
    • Use specific key word searches to locate pertinent information
    • Use de-duplication and de-NISTing techniques to eliminate duplicate files
  •  If you are not skilled in forensic investigation and computer analysis – USE A PROFESSIONAL!!
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