On Wednesday, March 6, Nextpoint hosted the live webinar, “Understanding the eDiscovery Amendments to the Florida Rules of Civil Procedure.” If you missed the event, a recording is available here. Florida attorney and eDiscovery guru Jason Molder presented the session along with Nextpoint CEO Rakesh Madhava, describing all of the ways the newly codified Florida eDiscovery rules affect Florida lawyers.
During the event, we took question online via chat. We tried to answer as many as possible at the end of the event, but didn’t have time to get to them all. Here are answers to the remaining questions:
Be specific with your requests. Courts generally will deny motions to compel production of ESI when a request seeks unfettered access to computer equipment without good cause, especially if less intrusive means for obtaining discovery are available.
In general, requests for ESI should be as specific as possible while requesting all relevant information, so that forensic examiners are able to recover only relevant documents and data without needlessly sweeping up private content belonging to family members or other non-party individuals. eDiscovery motions to search home computers should include the parameters of the data review protocol, or Courts may choose to impose one.
Does the Stored Communications Act provide a means to direct an Internet-based email service provider to preserve emails notwithstanding an account holder’s intentional deletion of that email? Some providers say they preserve for a given time (e.g., 30 days) following deletion by the account holder. How can I preserve this data in the hands of a third party provider located outside Florida? Restraining Order issued by Florida Court?
The Stored Communications Act (SCA) is a US Federal law that protects from disclosure certain information held by entities such as – but not limited to – email service providers and social media sites. The easiest way to get information from a communications provider governed by the SCA may be to seek a Court Order which requires the account holder to authorize the communications provider to release such information. This relief should be sought as early as possible to prevent spoliation of ESI.
As with any third party in possession of ESI, it is always advisable to send out a preservation letter to try and avoid the spoliation of ESI, whether intentional or unintentional. Depending on who is holding the ESI and where they are located, your request may or may not be honored. Enforcement of Court Orders issued by Florida Courts in other jurisdictions would depend on the law in those other jurisdictions.
I’ve been told it’s not possible or practical to get deleted emails. Is this true?
This is a computer forensics issue and is beyond the scope of this webinar. However, to the extent deleted emails are recovered and exist on a storage medium, they would be subject to discovery under the rules just as any other item of ESI would be.
At what point to do you file motions to preserve electronically stored data/emails and what motions do you file?
The answer to this question should be the same for traditional paper discovery as it is for ESI. The moment a defendant is aware of a claim or lawsuit they have a duty to preserve information relevant to that subject matter.
In this regard, ESI is no different than paper records. If you’re filing motions for paper documents, you should include ESI in your motions as well. If you’re aware that there are third-parties in possession of information relevant to your case, you should send out preservation letters and/or non-party subpoenas in connection with that information, as applicable.
If there are special circumstances to justify a motion to preserve such information, I am aware of no Florida rule of civil procedure that would prevent the filing of such a motion. However, a motion to simply compel the production might be just as effective. This is a decision that the attorney should make in consultation with the firm’s e-discovery professionals.
Nextpoint is recognized by the Florida Bar as part of the Member Benefits Program. Flordia Bar members can receive 10% off all Nextpoint annual subscriptions.