by Robert H. Thornburg
- Recently, electronic discovery has become a hot topic of conversation here in Florida and nationwide. A 2005 decision by the 15th Judicial Circuit in Palm Beach County, Coleman Holdings, Inc. v. Morgan Stanley & Co., 2005 WL 679071 (Fla. 15th Cir. Ct. 2005), which resulted in a $604.3 million verdict, has spurred much of this debate. In Coleman, defendant Morgan Stanley was accused of defrauding billionaire investor Ron Pearlman in a 1998 cash/stock deal. Pearlman made repeated document requests to obtain Morgan Stanley’s internal e-mails relating to the deal. Despite the onset of litigation, Morgan Stanley had failed to preserve these e-mails, and Pearlman requested a jury instruction that the e-mails unveiled a scheme to defraud him. The court agreed and instructed the jury accordingly. The result: A combined jury verdict and attorneys’ fees award amounting to over $1 billion.
As the court in Coleman was handing out its adverse jury instruction in West Palm Beach, the Second District Court of Appeal in Lakeland was also ruling on the importance of preserving electronic data. Channel Components, Inc. v. America II Electronics, 915 So. 2d 1278 (Fla. 2d DCA 2005), involved accusations that Channel Components had misappropriated trade secrets from America II. In a lengthy three-year discovery battle, America II had repeatedly requested e-mails and data from Channel’s customer tracking program to prove its theory of trade secret theft. During a hearing, Channel stated to the court that the e-mails no longer existed, despite deposition testimony to the contrary just months prior. The court imposed a sanction of $2,500 per day until Channel Components could locate and produce the requested data. Channel Components produced some materials and appealed the $75,000 sanction as egregious. The Second District disagreed, and affirmed.
If the outcomes in Coleman and Channel Components have not hammered home the growing role of electronic discovery in the practice, they should. In 2004 alone, the costs of electronic discovery preservation, collection, and production totaled more than $700 million, with predictions that the figure could rise to over $1.8 billion in 2006.1 Today, over 90 percent of a company’s documents are created electronically, but never printed.2 The filing cabinets of yesteryear have gone by the wayside and have been replaced by desktops and laptops.3
Just as computers have replaced filing cabinets, e-mail has changed how we communicate and transact business. In 2002, over 1.4 million e-mails were sent and received throughout the U.S.4 AOL reports e-mail usage now exceeds use of traditional postal services. AOL also projects that e-commerce will continue to grow at a rapid pace in the next three years to a staggering $410.3 billion in 2009. It is little wonder why Judge Ronald Hedges recently declared that “electronic data has become the crucial source of discoverable evidence in corporate litigation and regulation.”5
But what are the bounds of electronic discovery, and what duties are imposed upon attorneys and their clients to maintain, produce, and use electronic evidence? This article addresses these issues, provides an overview of the Florida cases that have addressed these issues, and outlines the new Federal Rules of Civil Procedure dealing with electronic discovery.
Basis for Electronic Discovery in Florida State Courts
In their current form, the Florida Rules of Civil Procedure do not directly accommodate discovery of electronic data.6 However, Rule 1.280(b)(1) does state “parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action….”7 Rule 1.350(a) also provides that “[a]ny party may request any other party to . . . inspect and copy, test, or sample any tangible things that constitute matters within the scope of Rule 1.280(b)….”8 In 1996, the Fourth District in Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th DCA 1996), held that both Rule 1.280 and 1.350 are sufficiently broad to include discovery of electronic materials relevant to the underlying dispute.9 Subsequently, other courts have found the Florida rules not only allow for discovery of a party’s electronic data, but also a third party’s data.10 As long as the files are “readily available” in electronic form to the producing party, a requesting party may obtain the underlying electronic data (also known as native files) through a discovery request.11 However, such request should be appropriately tailored to seek relevant electronic materials and not constitute a mere fishing expedition.12
Since Strasser, approximately a dozen Florida cases have dealt with the issue of conducting electronic discovery. The Florida Bar is exploring whether to propose modifications to the current Rules of Civil Procedure similar to the anticipated December 2006 changes to the Federal Rules of Civil Procedure. While the state of the law and the procedural framework for electronic discovery remain in flux, it is clear that Florida law imposes a duty to preserve and produce certain types of electronic evidence. Types of electronic material discoverable under these cases include e-mails, instant messages, computer source code, databases, computer sales reports, and information stored on PDAs.
Production of E-mails and Instant Messages
Instant messages and e-mails remain the most common type of electronic data requested in discovery.13 The value of this material resides in the fact that unlike traditional correspondence, the ease of sending or replying to an e-mail causes people to say things they would not normally say. This often results in more frank, honest, and damaging statements. The classic example is Arthur Andersen’s shredding of Enron-related documents. Several e-mails by Andersen’s employees candidly remarked and joked about the shredding of thousands of crucial auditing materials. The result: Those e-mails surfaced, and today Andersen no longer exists.
While e-mail communications and related instant messages have become predominant ways that we communicate both personally and in business, discovery of such materials does have bounds. In Menke v. Broward County School Board, 916 So. 2d 8 (Fla. 4th DCA 2005), defendant Menke was a schoolteacher suspended by the Broward County School Board based upon allegations of improper sexually explicit e-mails and instant messages with minor students. The school board sought discovery of these electronic communications through forensic inspection of Menke’s personal home computers, including those used by his family. The administrative law judge handling the allegations agreed and ordered forensic inspection. On appeal, the Fourth District found the ALJ’s order too broad. While the e-mails and instant messages were relevant to the allegations, unfettered access to all of the family computers risked disclosing privileged and confidential information. Further, no evidence existed that Menke had intentionally deleted or erased any information to require the need for forensic evaluation.
Despite the limitations suggested in Menke as to production of e-mails, in early 2006, the 17th Judicial Circuit ordered forensic review of a third party’s personal computer for e-mails relevant to accusations of trade secret theft. In AutoNation, Inc. v. Hatfield, Case No. 05-2037, WL 60547 (Fla. 17th Jud. Cir. 2006), plaintiff sued its former employee Hatfield for trade secret misappropriation, based on his purported downloading of AutoNation’s pricing database. The plaintiff’s complaint alleged that Hatfield downloaded the information, stored it on a peripheral device, and e-mailed it to nonparty, Julie Anderson. In its preliminary injunction motion, AutoNation requested an order allowing forensic retrieval of any e-mails from Hatfield to Julie Anderson. The court agreed and granted the motion in full.
One additional issue facing practitioners that has not been directly addressed by any Florida court is whether production of e-mails and related instant messages should be produced in printed or native electronic form. One side of the argument is by producing an electronic copy, the entire organization of the communication remains intact (i.e., in-box, out-box, trash, etc.). This cuts down on attorney review time. Many federal courts now require production of e-mails in their native form,14 as well as requiring the producing party to eliminate duplicate e-mails prior to production, referred to as “de-duplication.”15 On the other side, many practitioners have been hesitant to produce native forms of e-mails, arguing this practice is too intrusive, as the underlying data about the communication, also referred to as metadata, reveals too much information. Metadata, which has become a hot topic of debate in Florida, is defined as “data about data,”16 and includes underlying information in e-mails such as the sent date, receipt date, server information, and how the communication passed along the Internet. The likely outcome to this debate is that if the e-mails are relevant, a requesting party can obtain the native versions, including the underlying metadata, as long as it does not implicate privileged information.
Computer Source Code
Computer programs are maintained in two forms, source code and binary code. Source code is the readable version that computer programmers can review and modify. In most trade secret and copyright disputes involving software, discovery often hinges upon reviewing both the plaintiff’s and defendant’s source code to ascertain similarities. However, in requesting computer source code, both parties invariably raise the issue of confidentiality and whether the true reason for the request is to gain a competitive advantage over another.
The classic example of this tension in producing underlying source code was addressed by the Fourth District in Beck v. Dumas, 709 So. 2d 601 (Fla. 4th DCA 1998). Beck and Computel developed customer computer software applications. Computel hired Dumas to help develop a custom hotel management software system. Dumas sued, arguing Computel fraudulently enticed him to enter an employment agreement and that Computel had falsely represented as to its ownership interest in the software. During discovery, Dumas requested production of all of Computel’s source code and related design documents for the program, and all native versions of the hotel software system. Computel opposed the production of the underlying source code and testing files, arguing the programs were all trade secrets, highly proprietary, and not relevant to Dumas’ claims. The trial court disagreed, and required production of the source code, without first having an evidentiary hearing or in-camera inspection. The Fourth District reversed, finding that the trial court should have conducted an in-camera review of the source code to ascertain whether the programs were truly relevant.
The lesson taught by Beck v. Dumas is that computer source code, when relevant, should be produced in its native form. However, the source code must be relevant to the underlying issues in discovery, and sufficient safeguards need to be in place to ensure confidentiality.
Computer databases are often a key source of information about a party’s finances, sales, invoices, and contacts. The true value of a database is its ease of searchability. Accordingly, courts have compelled production of database information and required the producing party to allow access to the electronic forms of such data.17 However, some courts have had trouble in dealing with discovery of databases because they are not fixed data, but rather constantly changing.18 In addition, the First District found that requiring a Florida government agency to search its databases was likely too burdensome, because the agency would have had to hire additional temporary staff to comply with the discovery request.19
The Fifth District in Kyker v. Lopez, 718 So. 2d 957 (Fla. 5th DCA 1998), directly addressed whether production of computer sales reports generated by a database were discoverable. The Kyker decision involved a corporate dissolution where shareholder Lopez sought a right to inspect and copy financial records of a subsidiary of Kyker. Kyker refused to allow review of the electronic database that contained the entire financial sales reports of all the companies and subsidiaries. Lopez filed a motion to compel the review of the computer sales reports, and Kyker filed a motion for protective order. Kyker argued that it would be too burdensome to produce the computer-generated reports. The trial court disagreed, and the Fifth District affirmed the decision. The Fifth District reasoned that Kyker had a burden to show how the requested review of financial database information subjected him to annoyance, oppression, and undue expense. While the trial court did not have authority to order production of future sales data, production of the existing database sales information was relevant and discoverable.
Black Boxes and PDAs
As technology advances, so do the sources for electronic discovery. Examples of new technologies that have become storehouses of valuable electronic data include cell phones, personal digital assistants (PDAs), Palm Pilots, and transportation safety recording devices (black boxes). Florida courts have been decisive in finding that as long as the information contained within these devices is relevant to the underlying dispute and not privileged, they too can be the subject of discovery.
The Third District found if appropriate parameters are in place to protect against production of privileged information, the contents of a black box are discoverable. In Southern Diagnotic Associates v. Bencosme, 833 So. 2d 801, 803 (Fla. 3rd DCA 2002), a party had sought an overly broad electronic discovery request to inspect the defendant’s transportation data recorder, or black box. The request placed no restrictions on the confidentiality of the information, or who could review the materials. Likewise, no restrictions were placed on the expert’s ability to disseminate the information to others. On appeal, the Third DCA found that because no parameters were in place, inspection would be improper. However, such inspection would be proper if the requesting party could set requirements and parameters to ensure the preservation of confidential information.
Recently, the Florida Supreme Court affirmed the discovery of internal notes taken on a PDA. In Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), an insurance coverage dispute, Allstate denied Ruiz coverage involving an auto accident. Ruiz sought discovery of the adjuster’s PDA notes taken when Ruiz alerted Allstate about the car accident. The Fourth DCA found the internal computer diary notes were relevant and should have been produced. The Florida Supreme Court affirmed.
Internal Reviews of Medical Performance and Patient Information Databases
The Fifth District in Beverly Enterprises-FL, Inc. v. Ives, 832 So. 2d. 161 (Fla. 5th DCA 2002), denied discovery of electronic materials that revealed a nursing home’s internal review of nursing performance. In Ives, Lynam sued Beverly Nursing Home due to the apparent negligent care of Marie Ives, resulting in her wrongful death in May 1998. In discovery, Ives’ personal representative sought production of Beverly’s computer-based internal peer review evaluations and related confidential memoranda. Beverly argued against production, stating that F.S. §768.40(4) protected against review of medical peer review evaluations, including nursing home care agencies. The trial court granted the motion to compel, and Beverly petitioned for a writ of certiorari to the Fifth District. In quashing the order to compel, the Fifth District found that “the instant case is a clear example of a discovery order that violates the protection afforded by the applicable statute….”
Similarly, the Fourth District ruled that forensic review of a medical group’s computer database is permissible when there is no alternative source for the requested information, but safeguards must be in place to protect patient records.20 In Strasser, the plaintiff made repeated document requests in which no responsive documents were produced. Based upon this refusal, the plaintiff then sought discovery that included forensic review of the defendant’s computer database. The defendant’s computer expert admitted that over 400 MB of responsive material existed, in addition to evidence of purged files. Plaintiff’s expert asserted such files could be forensically retrieved. The Fourth DCA held that electronic discovery via forensic inspection and production was proper, upon proof that purged files could be retrieved. If no less intrusive means existed and sufficient parameters were in place, such e-production was proper. Such parameters included ensuring third-party confidentiality of patient information.
Cost Shifting and Bearing the Expense of Electronic Discovery
The debate surrounding electronic discovery involves not only what types of electronic data can be discovered during litigation, but also which party (the requesting party or the producing party) should have to pay for production of electronic files. Traditionally, the producing party bore the costs associated with reviewing, copying, and producing documents. However, with the need to hire forensics experts and outside consultants to fully search computer servers and backup tapes to respond to e-requests, the costs associated with electronic discovery are often astonishing. While storage and review of electronic material are often cheaper than manual review of printed documents, the initial collection and preparation of responsive electronic data is often time consuming and costly. Two Florida cases have touched upon the subject.
In Biomet, Inc. v. Fleury, 912 So. 2d 706 (Fla. 2d DCA 2005), the Second District addressed the issue of costs in preparing requested electronic data. Fleury had sued for injuries sustained from a purportedly defective orthopedic medical device. During discovery, Fleury sought production of Biomet’s internal reports which identified the number of its known prostheses that contained polyethylene. Biomet argued it would take two full weeks to review its internal reports and database files to ascertain that kind of information. Fleury agreed to pay for the costs of such a review, and the Second District allowed the discovery.
In Centex-Rooney Construction Co. v. Martin Co., 725 So. 2d 1255, 1261 (Fla. 4th DCA 1999), the issue focused on whether a law firm could recoup costs associated with developing an electronic discovery database. In Centex, the prevailing party’s counsel, Holland & Knight, sought collection of $1.9 million in attorneys’ fees and $1.3 million in legal costs. A portion of those legal costs was associated with developing a computer program to catalog, search, and review electronic discovery. The Fourth District held that the costs attributed to the review and searching of electronic discovery were reasonable because in complex litigation “firm resources to manage the volume of discovery are essential.” Thus, the trial court did not abuse its discretion in including the electronic discovery costs in the award of legal costs.
While no Florida court has yet to address the issue, cost-shifting has become an important issue in electronic discovery. Three years ago, the Southern District of New York in Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 284 (S.D. N.Y. 2003), outlined seven factors to determine whether the requesting party should bear the cost of preparing requested electronic discovery. They are the extent to which the request is specifically tailored to discovery of relevant information; availability of information from other sources; total costs of production compared to the amount in controversy; total costs of production compared to the resources available to each party; relative ability of each party to control costs and the incentive to do so; importance of the issues at stake in the litigation; and relative benefits to the parties of obtaining the information. Other jurisdictions have adopted the Zubulake factors in the same or slightly modified form.21
Impact of Proposed New Federal Rules on Electronic Discovery
The new proposed Federal Rules of Civil Procedure, which go into effect on December 1, 2006, provide sweeping changes in how electronic discovery will be handled in the civil context. “The amendments are the biggest change to the Rules of Civil Procedure in a generation or two.”22 The first major change is found in Rule 26(f), which deals with the pretrial conference between counsel to iron out ground rules for discovery. With the new rule, attorneys must be prepared to discuss not only the role of electronic data in the dispute, but where such electronic data is located in their clients’ computer systems. The rule contemplates that counsel will conduct investigations of their client’s computer systems prior to the conference. The rule will also require counsel to understand the nature of the electronic materials relevant to the dispute and how they may impact the litigation. During the conference, parties must discuss how electronic information will be produced and how to preserve confidentiality and privilege in the event of inadvertent production.
Another important change to the federal rules is found at Rule 26(b)(2), which states that a party need not produce electronically stored information that is “not reasonably accessible” because of “undue burden of cost.” The amendment to Rule 26(b)(2) appears to codify Zubulake and make that test the national standard in cost shifting. However, it will be up to the courts to provide greater guidelines as to what types of electronic discovery are not reasonably accessible and what constitutes an undue burden in scanning computer systems for discovery.
Rule 34 has traditionally governed the production of documents during discovery. Under Rule 34(b), a party producing documents had the choice of producing them either a) as they are kept in the usual course of business, or b) organized and labeled to correspond to the categories of documents sought in the request. In most instances, parties chose to produce documents as kept in the ordinary course of business, due to the costs and difficulty in organizing and labeling materials based upon a specific document request. However, Rule 34 has now been dramatically renovated to better address production of electronic discovery. Now, production will be in a form 1) in which it is ordinarily maintained, or 2) in a form that is reasonably useable. Under this new terminology, production no longer can occur by organizing production to correspond to categories of documents. Rather, production “in which it is ordinarily maintained” likely means production of electronic data in its native or electronic form. Likewise, “in a form that is reasonably useable” means an electronic form that is searchable.
With the introduction of these new federal discovery guidelines, eventual judicial interpretation will provide a more detailed framework for their application and use. Nonetheless, practitioners will certainly have a duty to understand their clients’ potential sources of electronic data early in litigation and to produce electronic data in a useable, searchable, and native format.
Spoliation of Electronic Discovery
Spoliation occurs when a party fails to preserve evidence relevant to the underlying dispute. One of the crucial issues involving claims of spoliation is whether the duty to preserve electronic evidence occurs at the time the lawsuit is served, or if the duty occurs prior to the lawsuit when a party has a reasonable belief that certain conduct will lead to litigation. Some federal courts have declared that a duty to preserve electronic evidence occurs after the purported misconduct when the party has a reasonable belief that litigation will ensue.23 The U.S. Court of Appeals for the First Circuit has held that the duty to preserve occurs when there have been persistent attempts, prior to the filing of a lawsuit, to obtain documents regarding some purported misconduct.24 The U.S. Court of Appeals for the Fourth Circuit has stated that the duty to preserve discovery occurs “when a party reasonably should know that the evidence may be relevant to an anticipated litigation.”25
Despite the suggestions of these federal courts that the duty to preserve is guaranteed prior to the filing of a lawsuit, the law in Florida is that the duty is triggered at the time the lawsuit is served.26 Florida courts recognize that the duty to preserve electronic evidence arises in two separate contexts after the onset of litigation: first-party spoliation and third-party spoliation. First-party spoliation occurs when a named plaintiff or defendant destroys electronic data. Third-party spoliation occurs when an unnamed party, but related entity, who has a contractual or legal duty to preserve data, fails to retain the information after the litigation commences.
The Fourth District in Strasser v. Yalamanchi, suggested that upon evidence of spoliation of electronic data, the court should allow broader electronic discovery, including forensic inspection of a party’s computer systems. In Strasser, the court found that evidence of purged electronic files, after the filing of the lawsuit, warranted forensic evaluation of the defendant’s hard drive. Strasser also emphasized the general duty between all parties to preserve electronic evidence after the filing of a lawsuit.
A few jurisdictions outside of Florida permit separate causes of action for spoliation of electronic or related discovery. Such a claim is a separate and distinct cause of action, typically brought by the plaintiff after the defendant has destroyed information. In Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005), Justice Wells’ concurring opinion suggests that there is no independent cause of action for spoliation of electronic data. In Martino, the plaintiff sued Wal-Mart for negligence after she suffered an injury when her shopping cart collapsed while she was ringing up goods at a cashier’s station. During discovery, Martino requested inspection of the shopping cart, as well as electronic surveillance video, both of which Wal-Mart could not produce. Martino filed a second amended complaint and added a claim of spoliation. At trial, Martino sought an adverse inference jury instruction, which the trial court denied. Instead, the court granted Wal-Mart’s motion for directed verdict.
Martino appealed, arguing that the trial court should have allowed an adverse inference jury instruction due to Wal-Mart’s destruction of electronic evidence. The Fourth District found no independent cause of action for spoliation for electronic discovery violation. The Florida Supreme Court agreed, finding that the use of presumptions or sanctions may create serious due process concerns. The Florida Supreme Court also found there was no independent cause of action for first-party spoliation of evidence in Florida. Failure to produce the electronic material could lead to an adverse inference. Because Martino had filed suit two years after the incident, and no court order required Wal-Mart to preserve evidence, an adverse inference was not proper.
After the Martino opinion, the Coleman court found that spoliation of electronic discovery warranted an adverse inference, which resulted in a disastrous jury instruction and a large damage figure.27
“Electronic discovery — or e-discovery — has become much more complicated than simply pulling deleted e-mail messages off a hard drive.”28 Attorneys and their clients have a duty to understand the existence of electronic data relevant to the underlying disputes and to produce this information in a manner that is useable and searchable. Parties also have a duty, after the onset of litigation, to preserve not only printed materials but also underlying electronic data through a legal dispute. Failure to maintain such data, or produce it when requested, can and will have disastrous effects.
1 Loyd S. Van Osstenrijk, Paper or Plastic?: Electronic Discovery and Spoliation in the Digital Age, 42 Hous. L. Rev. 1163, 1186 (2005).
2 Howard Mankoff, Electronic Discovery: The Final Frontier, available at www.MarshallDennehey.com/FSL AppsTemp/radE8730.tmp.asp? (last visited April 2, 2006).
3 Electronic Discovery, available at www.KrollOntrack.com (last visited April 2, 2006).
4 See id.
5 Discovery of Digital Information, available at www.kenwithers.com/articlesindex.html (last visited April 2, 2006).
6 On January 20, 2006, The Florida Bar Rules of Civil Procedure Committee created a separate subcommittee, headed by Lawrence Kolin, to study proposed changes to the Federal Rules of Civil Procedure regarding electronic discovery, and draft proposed changes to the current version of the Florida Rules of Civil Procedure.
7 Fla. R. Civ. P. 1.280(b)(1).
8 Fla. R. Civ. P. 1.350(a).
9 Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th D.C.A. 1996).
10 RBES, L.C. v. Santana, 770 So. 2d 277 (Fla. 3d D.C.A. 2000).
11 State Farm & Casualty Co. v. Snyder, 669 So. 2d 303 (Fla. 3d D.C.A. 1996).
12 Northrup Grumman Corp. v. Swope, 717 So. 2d 213 (Fla. 5th D.C.A. 1998).
13 Michael Kaminiski, Understanding U.S. Electronic Discovery and Best Practices Thereof, available at www.foley.com (last visited April 1, 2006).
14 In re PriceLine.com, Inc. Securities Litigation, 2005 U.S. Dist. LEXIS 33636 (D. Conn. Dec. 8, 2005).
15 See id. See also Wiginton CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) (suggesting that the producing party has a duty to “de-duplicate” e-mails prior to production to reduce multiple hits of same e-mails).
16 The Sedona Guidelines define “metadata” as “information about a particular data set which describes how, when, and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements, and media information.” The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information and Records in the Electronic Age (Sept. 2006), available at www.TheSedonaConference.org.
17 Tessera, Inc. v. Micron Tech., Inc., 2006 WL 733498 (N.D. Cal. 2006).
18 Bob Barker Co. v. Ferguson Safety Prods., 2006 WL 648674 (N.D. Cal. Mar. 9, 2006).
19 Fla. Dept. of Professional Regulation v. Florida Psychological Practitioners Assoc., 483 So. 2d. 817 (Fla. 1st D.C.A. 1986).
20 Strasser, 699 So. 2d at 1145.
21 See, e.g., Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004).
22 Richard Ancello, E-mail to Lawyers: Electronic Discovery Rules on the Way, available at www.abanet.org/abanet/common/print/printview.cfm? (last viewed October 7, 2005) (quoting George Paul).
23 See, e.g., Stevenson v. Union Pacific Railroad Co., 354 F.3d 739 (8th Cir. 2004).
24 Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148, 1159 (1st Cir. 1996).
25 Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001).
26 See Royal & SunAlliance v. Lauderdale Marine Center, 877 So. 2d 843 (Fla. 4th D.C.A. 2004) (citing Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th D.C.A. 2001).
27 Coleman Holdings, Inc. v. Morgan Stanley & Co., Case No. 03-5045 2005 WL 679071 (Fla. 15th Cir. 2005).
28 Leigh Jones, The Surging Revolution of Electronic Discovery, The National Law Journal, available at www.law.com/jsp/law/LawArticleFriendly.jsp?id=1090180322383.
Robert H. Thornburg is the current chair of the Cyber & Computer Law Committee of the Business Law Section. He is a registered patent attorney who practices in the field of intellectual property and computer-related litigation at Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., in Orlando. Mr. Thornburg received his B.S in chemical engineering, cum laude, from the University of Notre Dame, his J.D., with honors, from the University of Florida, and his LL.M. in intellectual property law, with honors, from The John Marshall Law School.