The Florida Bar's Civil Procedure Rules Committee has submitted a report proposing rule amendments to address discovery of electronically stored information (ESI) to the Supreme Court. These proposed rule amendments will be heard before the Supreme Court on March 7, 2012.

The proposed amendments closely track the Federal Rules of Civil Procedure, which were amended in 2006 to address ESI-related discovery. As a result, the proposed amendments to the Florida Rules include the following:   

• Rule 1.200 now specifically references ESI and encourages early discussion of ESI in case management conferences, but does not require this discussion.

• Rule 1.280 adopts the federal proportionality test, and generally allows discovery of ESI and parties to object to that discovery based on undue burden and expense.                

• Rule 1.350 allows the requesting party to specify the desired form of production of ESI.                

• Rule 1.380 includes a safe harbor provision, which protects parties that have deleted information through the ordinary course of business, but not after a party knows it is under a duty to preserve information.     

Notably, the proposed rules merely encourage early discussion of ESI in case management conferences, unlike the Federal Rules which require a "meet and confer" session between the parties. The committee stated that the lack of requirement of a "meet and confer" as to ESI is due to the fact that there are still many cases that do not involve ESI and such cases will not otherwise benefit from a mandated early session. Parties may be able to mitigate this limitation by moving for an early case management conference under the new version of Rule 1.200.

Presuming the Supreme Court approves the proposed rule amendments on ESI, practitioners in Florida for the first time will have some rule-based clarity in how to begin to address electronic discovery in state courts. The lack of a "meet and confer" requirement, however, means that the proposed rule amendments fail to address a cause of significant and costly ESI-related discovery problems: overbroad discovery requests due to the failure of parties to meet and confer early in the case to agree on reasonable ESI discovery.