What is required for electronic discovery?
State and federal courts in Florida apply different rules for electronic discovery. The requirements can be more burdensome in federal court, including, most notably, parties having to produce or at least identify all electronically stored information relating to the litigation before it is even formally requested. However, the federal rules on electronic discovery have a more specific framework for the production of electronic records, which, in some cases, will afford invaluable protections from electronic discovery requests.
While the state discovery rules do not yet specifically address electronic discovery, state courts interpreting the procedural rules governing discovery routinely require production of electronic business records. As in federal court, state courts have general discovery requirements and protections that can be applied to electronic discovery.
Just as with traditional paper discovery, electronic discovery can result in a variety of sanctions if not properly responded to. It is important to work with an attorney who can efficiently employ the requirements and protections of electronic discovery.
How should electronic business records be managed?
As with physical documents, electronic documents may be produced in the manner in which they are kept in the ordinary course of business or they may be categorized by the different types of discovery requests. Whether producing electronic records as a nonparty responding to a subpoena or as a party to a lawsuit, your attorney should review your records before they are produced to ensure a thorough and appropriate production. Business records that are well organized by type and sorted by client or project will be more cost-effective to produce in electronic discovery. Moreover, for a business that is a party to a lawsuit, well-organized electronic records that are easier to consume could help convince your adversary of the merits of your position and result in a more efficient resolution of the dispute.
A business-minded commercial litigation attorney will help his or her clients plan ahead before litigation and ensure that the best electronic document management practices are employed. As a result, participating in electronic discovery will be less costly and burdensome, and electronic evidence can be more efficiently marshaled to pursue claims or support defenses in litigation.
Jeff Berman, Esq., is an attorney with Katz Barron Squitero Faust. Reach him at [email protected].
