Supreme of Court of Florida Ushers In Electronic Service, Electronic Filing, and Electronic Discovery
The Supreme Court of Florida has created quite a stir among the less tech-savvy members of the legal community (and who don't practice in federal court) with its June 2012 announcement that Florida courts are about to join the electronic age. Preparation for these moves has been ongoing for over a year, as noted on this blog here. Here's a quick overview of the imminent changes, and the dates they become effective.
Email Service to Replace Service by Mail & Fax
Mandatory service of all filings by email instead of snail mail will begin September 1, 2012 (pushed back from the originally announced July 1, 2012). Until the electronic filing system at the clerks' offices is up and running, filings will be served by sending them as attachments (which must be less than 5 MB in size) to an email addressed to opposing counsel. Lawyers will be required to designate an email address for service in each case. Mandatory service by email will not go into effect in criminal, traffic, and juvenile cases, however, until October 1, 2013.
Pro se litigants are exempt from the email service requirement, but may choose to opt in. There is also an out for lawyers that don't have an email account and don't have Internet access to move to be excused from email service. Are there really still attorneys out there that can honestly say, and would openly admit, that neither they nor anyone else in their office has email or Internet access? The Supreme Court seems to think so.
Also going into effect on September 1, 2012 are the Court's amendments to the Florida Rules of Civil Procedure to formally address discovery of electronically stored information. The gist of the new e-discovery procedures is as follows:
(1) Electronic information is officially discoverable.
(2) In non-complex cases, e-discovery may, and in complex cases, it must, be addressed during a case management conference.
(3) E-discovery requests can be objected to based on the burden or cost of accessing the information or producing it in the requested form, but the resisting party has the burden to prove the validity of the objection, and the court can order production if good cause is shown even if that showing is made. Courts are also authorized (encouraged?) to place limits on e-discovery.
(4) Electronic information must be produced in the form in which it is stored or in a reasonably usable form. The requesting party may also specifiy the form in which the information should be produced.
(5) A party can't be sanctioned for failing to preserve electronic information if it is destroyed through routine, good faith processes. But the committee notes make clear that if the party is put on notice via a request to preserve, a court order, or agreement, destruction through routine processes is less likely to be considered in good faith unless it occurs notwithstanding the party's good faith efforts to prevent the routine destruction.
(6) Electronically stored information can be subpoenaed.
(7) Resolving e-discovery issues by agreement is highly encouraged.
The amendments appear to be modeled on the e-discovery provisions in the Federal Rules of Civil Procedure. As has been the case in the federal system, it will probably take some time -- and litigation -- before the Rules' general provisions are given enough shape to provide clear guidance. In the interim, it's a good idea to make every effort to reach an agreement with opposing counsel on the scope of e-discovery, if at all possible.
Electronic filing of documents with the courts will take a little longer to implement. Except for the few trial courts in which electronic filing is already in place, electronic filing will go into effect according to a staggered schedule depending on the type of case/court:
Appeals and original proceedings in District Courts of Appeal: October 1, 2012
Appeals and original proceedings in the Supreme Court of Florida: October 1, 2012
(Clerks of court, however, will not be required to transmit the record on appeal electronically until January 1, 2013).
Civil division of trial courts: April 1, 2013
Probate division of trial courts: April 1, 2013
Small claims division of trial courts: April 1, 2013
Family division of the trial courts: April 1, 2013
Appeals to the circuit courts (in the types of cases identified above): April 1, 2013
Criminal division of the trial courts: October 1, 2013
Traffic division of the trial courts: October 1, 2013
Juvenile division of the trial courts: October 1, 2013
Appeals to circuit courts in criminal, traffic, or juvenile cases: October 1, 2013
Note, however, that these dates are being set as the latest times for implementation of e-filing, and do not prevent individual courts from starting e-filing sooner. Courts that have the technical capability will undoubtedly implement e-filing sooner than October 1, 2013.
For example, the Palm Beach County Clerk's Office recently announced that e-filing will be phased in, beginnin with e-filing in residential foreclosure cases in Palm Beach County Circuit Civil Division AW right after labor day, on September 4, 2012. The Broward County Clerk's Office, which initiated e-filing in certain complex civil cases in January 2012, and has had voluntary e-filing in probate cases in place for more than a year, is likely to phase in e-filing in other types of cases before October 2013 as well.
Be sure to check the clerks' websites periodically to stay abreast of new e-filing developments.