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Archive for October, 2012

It might seem difficult to get excited over the state of Florida adopting it’s own rules for managing eDiscovery, effective last month. After all, they’re the 29th state to adopt such rules, and they are closely based on the amendments to the Federal Rules of Civil Procedure adopted at the federal level six years ago.

But the rules adopted in Florida also show that eDiscovery continues to be taken seriously as an ongoing challenge. Even if it it is taking an interminable amount of time for the United States’ judicial system to get these kind of eDiscovery rules in place, it’s nice to see that they continually evolve and mature. According to Law.com, “In all, the new rules demonstrate that the Florida Supreme Court has benefited from the experience of other states, federal courts, and local, knowledgeable practitioners to establish a well-thought-out framework.”

For example, the rules incorporate the principles found in The Sedona Conference Cooperation Proclamation, which encourage cooperation between parties, and even make  it an obligation in litigation. Many lawyers and judges have long felt that the discovery process will implode if the process remains adversarial, but they had no way to change things. The Proclamation was once considered an impractical and unrealistic approach to eDiscovery, but enshrinement in state rules could change that. In addition, the new rules codify the proper basis for a court’s evaluation of proportionality and good cause in eDiscovery, providing a clear mechanism for reigning in eDiscovery costs.

We’re more than halfway to getting all states on board with the new rules of eDiscovery. It’s been a long and painful process, but let’s hope that states can continue to be flexible and forward-thinking in adopting these rules. The original amendments to the Federal rules of Civil Procedure were a good start, but they are already in need of updating. Rather than wholesale adoption of the already strained Federal Rules of Civil Procedure, let’s have more thoughtful implementation like this.

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