Florida Adopts Guidelines For Recovery Of eDiscovery Costs
Every three years in staggered terms, each of the Florida Supreme Court procedural rules committees submits proposed new rules as part of a “regular cycle” of rules amendments. The Civil Procedure Rules Committee recommended numerous rule changes this term, including the first change in many years to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (the “Guidelines”). The amendments could easily be overlooked, appearing at the very end of the Appendix to the Court’s opinion. The only mention in the body of the opinion is simply that “The Committee also proposes amendments to the Uniform Guidelines on Taxation of Costs.” See In re: Amendments to the Fla. Rules of Civ. Procedure (Fla. Nov. 14, 2013). However, the addition of eDiscovery costs to the Guidelines is quite important. This piece discusses the eDiscovery cost amendments followed by a call to action for your involvement in the rulemaking process.
The Guidelines are quite important to practitioners and judges. While the Guidelines are designed to be advisory only and recovery of costs is “within the sound discretion of the trial court,” the availability of a list of what is recoverable and what is not recoverable creates uniformity from place to place and from case to case. It is (and should be) difficult to convince a court to vary from the Guidelines. In the unlikely event that a Florida judge varies from the Guidelines, a party opposing the decision should request that the judge should justify the variance with case-specific findings to preserve the objection and basis for the ruling.
The amendments adding eDiscovery costs are important. Because eDiscovery costs can be rather significant even in small cases, and because Florida state court judges are still learning and adapting to the presence of electronically stored information in their cases, having specific Guidelines on which costs should be recoverable is a significant achievement. The new Guidelines simply include as recoverable costs:
C. Electronic Discovery Expenses
1. The cost of producing copies of relevant electronic media in response to a discovery request.
2. The cost of converting electronically stored information to a reasonably usable format in response to a discovery request that seeks production in such format.
These expenses are in addition to the general costs recoverable that may also involve technology issues, such as a reasonable fee for an expert’s deposition and/or trial testimony, and the costs of preparation of any court ordered expert report.
Why lawyers should get involved in rulemaking. The inclusion of eDiscovery expenses in the Guidelines was proposed by me about three years ago. The Bar and the Supreme Court depend on lawyers, judges, and other knowledgeable people to propose additions and changes to the rules when needed. Just send the proposal and support for the proposal to the Clerk of the Supreme Court who will refer it to the appropriate committee. Florida Rules of Judicial Administration 2.140 discusses the entire rulemaking process and Amendments are specifically covered in Rule 2.140(a).
My experience over several years’ involvement in the Civil Procedure rules process is that well-reasoned changes will be duly considered by the rules committees, and proposers can participate in the process of considering their change. Attend a rules committee meeting as an observer and see the sausage being made. Better yet, fill out the Bar President’s Committee Preference Form and get on a rules committee of your choice. The experience of considering proposed rules and drafting rules will definitely sharpen your skills and make you better informed at the same time.
Ralph Artigliere was a civil trial lawyer and Florida Circuit Judge before retiring to write and teach. Mr. Artigliere teaches in the Florida Judicial Colleges and Florida Bar programs as well as education programs around the country, including the Georgetown Advanced eDiscovery Conference. He is Chair of the Sedona Conference® eDiscovery Cooperation Program in Chicago in February, 2014. Mr. Artigliere is co-author with Bill Hamilton of the LexisNexis book Florida eDiscovery and Evidence.