On September 1, 2012, Florida adopts new electronic discovery procedural rules. This article addresses how business operating in Florida can prepare.

1. HOW THE NEW FLORIDA E-DISCOVERY RULES WILL IMPACT YOUR BUSINESS
Imagine that your competitor or a former employee steals some propriety information of
your business, such as its customer list, trade secrets, or computer code. Now imagine that in
the ensuing lawsuit, your business is able to obtain an instruction from the Judge directing the
Jury to make an adverse inference from the fact that the thief failed to properly maintain e-mails,
didn't produce them, lost, or even destroyed them. What if the roles were reversed and the
Judge made your business pay the theif's costs to get your e-mails because you didn’t have a plan
to keep them.
Can’t happen? Think again. This scenario is playing out right now across the nation
in, for example, the case against TD Bank in Miami flowing from the Rothstein ponzi scheme
and the Apple v. Samsung suit in California over tablet technology in which Apple is claiming
damages in the billions. In Miami, the Judge sanctioned TD Bank and the large state-wide law
firm that represented it, which will likely result in tens of millons in additional liability. In
California, the Judge gave Apple a favorable jury instruction because Samsung failed to save
important e-mails when the dispute began. While Samsung may have valid defenses in that
case, what would you think if you were on that Jury and the Judge told you to draw an adverse
inference against Samsung for what it did ?
Got your attention? So what can businesses operating in Florida subject to these new
Rules do? They can implement plans now to safeguard electronic information to protect
themselves against being penalized or sanctioned in civil lawsuits later. This article is not
meant to provide legal advice or to form an attorney-client relationship; it is meant only to
provide general information about this important topic.
"DISCOVERY" IN THE DIGITAL AGE
Discovery is the process in a civil lawsuit by which parties obtain and exchange
information. Most people think of depositions when they hear of discovery. While
depositions are one component, discovery also involves the exchange of documents. In the
future, parties will routinely exchange electronic documents or "ESI" (electronically stored
information). To keep pace with this reality, the Rules that govern discovery in Florida are
changing on September 1, 2012.
WHAT IS THE EFFECT OF THESE NEW RULES?
The impact of these new e-discovery Rules on all businesses operating in Florida is
largely economic. Discovery in civil suits is often where a substantial amount of expenses
occur (see my video on discovery at http://www.davidsteinfeld.com/phases-of-a-lawsuit for
further information). Therefore, it is important for companies to efficiently manage these
discovery expenses to avoid situations where, despite the strength of their claims, burdensome
discovery expenses preclude their ability to get to Judge or Jury.
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2. WHAT CAN YOU DO? - IMPLEMENT ESI PRESERVATION PROTOCOLS AND
LITIGATION HOLD PLANS
So what can businesses in Florida do right now to avoid increased and potentially
burdensome costs or sanctions in connection with electronic discovery ? They can implement
ESI Preservation Protocols and Litigation Hold Plans now, before disputes arise. This ounce of
prevention isn't worth a pound of cure in e-discovery dollars, it will be worth ten.
Can a business or its IT staff craft these Protocols and Plans or can they be found on the
internet? Possibly, but they will likely not comply with these new Rules and Florida law, fit the
unique circumstances of the business, and might not be defensible in Court. Generic legal
documents never quite fit circumstances that arise later because they are not tailored to fit any.
The better approach is to engage a competent business lawyer that knows the technology and law
of e-discovery, can ask you the right questions, and more importantly of whom you can ask
questions and express concerns to gain an understanding of e-discovery and the new legal
obligations placed on your business.
SO WHO CAN YOU TURN TO?
When you search for Florida counsel for your business to help you in preparing ESI
Preservation Protocols and Litigation Hold Plans, seek out those in the Bar with an expertise in
these areas, such as Board Certified Business Litigation attorneys and those knowledgeable in e-
discovery. Also, bear in mind that in the digital world in which we now live, your attorney
need not be down the street because you can communicate with him or her via video, e-mail, and
screen sharing programs.
DON'T WAIT TO PUT THESE PLANS IN PLACE
Be proactive. In Florida, our Courts consider business people to be sophisticated by the
very nature of them engaging in business and will expect them to have these plans. Likewise,
the discussions and debates leading to the enactment of these new E-Discovery Rules has made it
clear that Judges will not consider a party or its counsel's ignorance in this new area of the law.
Therefore, now is the time for your business to prepare ESI Preservation Protocols and Litigation
Hold Plans with counsel, before any dispute and before you are called upon to fund potentially
costly e-discovery.
By David Steinfeld, Esq.
Florida Bar Board Certified Business Litigation Specialist
Law Office of David Steinfeld, P.L.
4400 Northcorp Parkway, Suite 122
Palm Beach Gardens, Florida 33410
Phone: (561) 316-7905
dave@davidsteinfeld.com
Videos and other business law articles available at www.davidsteinfeld.com
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