Circuit Court Judge Meenu Sasser of the 15th Judicial Circuit Court in and for Palm Beach County, Florida has issued a Standing Order on Electronically Stored Information Discovery which you can download it here.
The Order is fairly straightforward but here are the essential elements if your case is in Judge Sasser’s division:
- Which Cases Does It Apply To? If the Plaintiff checks the boxes on the Civil Cover Sheet that the case is a business tort, professional malpractice, antitrust, business transaction, IP, shareholder derivative, securities, or trade secret case, you should be prepared to comply;
- Meet and Confer Within 20 days of the order, the parties are to schedule a “meet and confer” conference which shall occur within 60 days of service of the Order. It is presumed, but not stated, that “meet” means in person. To the uninitiated, read Florida Rule of Civil Procedure 1.200 and 1.201 (more on this below)
- Discussion The parties shall discuss whether this is a complex litigation case; ESI custodian information; structure of client’s computer system, software, devices, and emails w relevant information (essentially a complete “data map”); ESI policies; need for an ESI clawback agreement; costs; and whether ESI issues could take over the case. Notably, there is no requirement to have an agreement on these issues nor document the meet and confer.
- Notice of Compliance A Notice of Compliance shall be served 15 days after a timely meet-and-confer; if the Notice is not filed, the Plaintiff has the burden to notify the court. No specific word on consequences.
This Standing Order should bring some order and (hopefully) greater understanding to the
not so new ESI procedural rules which all lawyers are supposed to be familiar with but, anecdotally, few know how to comply. I am ambitiously optimistic that, at the beginning of a case, a required conference between counsel will set the state for good relations among counsel.
If ESI issues are still unfamiliar to you and your practice, here are a couple of resources:
- Florida E-Discovery (2013) – PB Bar presentation on the “new” ESI rules in the Florida Rules of Civ Pro
- Proposed E-Discovery and E-Retention Letters (2013) – used at the PB Bar presentation
- Plaintiffs Want E-Discovery, Defendants Want Social Media Discovery (2013) – difference between how each side of the Bar using electronic discovery
- Florida Family Law: E-Discovery & Social Media Discovery (2013) – not just for family practice; explains the overlap and differences of e- and social media discovery
- eDiscovery Survival Guide (2012) – explains corporate-side steps for handling e-discovery and e-retention
I would strongly recommend that law firms, especially small/solo, get some input and outside help on these kinds of issues and steps. If you simply call a forensic company on a cold call, they are going to extoll horror stories and could overly complicate a case. You want to keep it simple and comply. Consider hiring counsel to assist just with the e-discovery side of cases so you do not have to worry about that “side show” (as important as it is) and so you can focus on your case.
Image credit: 15 Cir. Hon. Judge Sasser page