E-discovery rules sent to the court.

The first Florida procedural rules dealing with electronic discovery have been approved by the Civil Procedure Rules Committee and are being sent to the Supreme Court with an endorsement from the Bar Board of Governors.

Committee Chair Kevin D. Johnson presented the out-of-cycle amendment package to the board at its July 29 meeting, telling the board the proposals had been under development since 2006 when federal electronic discovery rules were put in place.

"We believe what we have is a very good, tight working proposal," he said.

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The amendments are needed, Johnson said, because, "Our rules do not address electronic discovery. There are a lot of issues that come up that are specific to dealing with electronically stored information, or ESI.

"It's different from your traditional discovery because of the volume of data that can be stored on computers. It's persistent; it hangs around in many different places for great lengths of time; it's often very dynamic and changeable as you can have systems that are designed and updated constantly so the information can be changed on you. Many times information is hidden in what you call metadata so that the document ... has a whole bunch of information that you do not see on the page.... We are finding that discovery is becoming more expensive and technically challenging because of the nature of ESI."

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In addition, Johnson said, "Courts are encountering these issues with much more frequency. We have heard from judges ... and many judges are asking when the committee is going to get around to adopting these rules."

In drafting the amendments, he said the committee sought to follow the federal rules as much as practicable, keep the rules as simple as possible, respect existing state law precedents, protect a small party from unnecessary, onerous, and expensive discovery requests from an opposing party with more resources, and try to encourage resolving electronic discovery issues early in the case without involving the judge, if possible.

The amendments include:

* Changes to Rule 1.200 and Rule 1.201 that will encourage the early discussion of ESI issues in case management conferences, including discovery and preservation matters. The committee opted not to propose a "meet and confer" requirement like that in Rule 26 of the federal rules because the committee believed that there are still many cases that will not involve ESI and will not otherwise benefit...