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Panel moving forward with rules for electronic discovery

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Panel moving forward with rules for electronic discovery

Orlando attorney Lawrence Kolin is “cautiously optimistic” about the implementation of electronic discovery rules in Florida.

The Civil Procedure Rules Committee’s Subcommittee on Electronic Discovery, which Kolin chairs, has been studying the impact of the new federal e-discovery rules since becoming effective just over a year ago.

“The subcommittee continues to look at the federal rules which have in practice and application been somewhat unevenly applied, depending on the jurisdiction,” said Kolin, noting he has seen the rollout of disparate local rules in federal courts as a supplemental effort to clarify them.

Kolin said he wants to avoid disproportionate litigation about discovery itself versus the actual merits of each case.

According to Kolin, educators, experts, and practioners in the emerging field of electronic discovery have spoken to the subcommittee, which has been broken into smaller work groups for drafting purposes. “The reality is that state practice in Florida is different from federal practice here, and those advances that have been made in early meet and confer and disclosure principles in federal court are slow to come to our state court culture,” he said

However, Kolin said he has been taking informal polls of the full standing committee since being appointed and is “receiving ever increasing support for incorporation of these ideas.”

Kolin said another option under consideration by the committee is a preliminary rollout of e-discovery rules in Florida’s business courts as a test before actual civil rules are passed. He said judges of those circuits where complex litigation divisions have already been established are amenable to the idea, which was discussed at last month’s Florida Conference of Circuit Judges’ meeting.

Kolin said his committee also has been in contact with other rules committees and remains the only one currently developing e-discovery. The panel also is working with other Bar sections for suggestions, such as with the Business Law Section’s Computer and Cyber Law Committee.

“We continue to observe the national scene with increasing courage to move forward with language for approval in concept,” Kolin said.

He encourages members of the Bar to become proficient in this area and suggests there are a wide variety of helpful resource materials available on this subject from independent organizations such as the Sedona Conferences.

However, he adds, “We were not so thrilled with the attempt by the Uniform Law Commission which contained confusing terms and even new queries such as: What is ‘retrievable in perceivable form?’”

According to Kolin, the need for succinct and easily defined rules in Florida exists.

“We are not alone in our desire to avoid pitfalls by acting in haste,” Kolin said. “Only a small minority of states have adopted new rules based on the federal rules or made any attempt to craft new ones.”

Kolin encourages feedback from Bar members who can e-mail the committee at [email protected]

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