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Sweeney Law, PA Fort Lauderdale Business Lawyer
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Three Things You Should Know About ESI Discovery in Florida


Electronically stored information or ESI is information that is stored in electronic form.  It contemplates a wide variety of media types without regard to how it was originally created. Therefore, electronically stored information can include conventional electronic documents such as spreadsheets, word and other document processing programs. ESI also includes electronic content on the Internet, computer-based databases, cell phones, voicemail and messaging platforms. As evident, ESI encompasses a wide range of information we frequently use in our daily lives. Given the ubiquitous nature of ESI in our lives, lawmakers sought to adapt to ESI and its effect on the legal discovery process. Hence, Federal Rule of Civil Procedure 34 was enacted. This rule defines ESI and sets forth civil procedural rules governing the discovery of electronic information. Here are the three things you need to know about ESI discovery in Florida:

Florida Has Not Expressly Adopted FRCP Rule 34. However…

It is important to note that Florida has not directly adopted the Federal Rules of Civil Procedure Rule 34.  In the alternative, Florida Rules of Civil Procedure Rule 1.280(b)(1) states, “parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action….” The difference between Rule 34 and the Florida rule is that Florida presents an expansive definition of discoverable materials and does not specifically make mention of ESI.  In addition to Rule 1.280(b)(1), Rule 1.350 states that “any party may request any other party to…inspect and copy, test or sample any tangible things that constitutes matters within the scope of Rule 1.280(b)(1)….” Again, Florida takes an expansive view of what is discoverable. Litigants in Florida should anticipate that with such an expansive view, any and all forms of ESI are discoverable in Florida.

Preservation is Key

The preservation of ESI for the purposes of litigation is essential to keeping sanctions and other adverse rulings at bay.  In two Florida cases, we learn that the preservation of ESI when requested by the court is critical. In Coleman Holdings v. Morgan Stanley, Defendant Morgan Stanley failed to preserve emails after repeated document requests were made by the Plaintiff. Even as the litigation commenced, the Defendant failed to produce the requested emails. The court issued a jury instruction that provided that the jury find in favor of the Plaintiff if they should agree that failing to provide the requested emails was part of a scheme to defraud. The jury voted ‘yes’ on the issue. Similarly, a Florida court imposed daily sanctions on a defendant who failed to produce requested ESI documents. The appeal of the sanctions was denied and the lower court’s imposed sanctions were held.

Even Databases are Not Excluded

One form of ESI that is often forgotten by litigants is databases.  As expansive as the Florida rule on discoverable items is, it is evident that even information on a database is discoverable. For example, in a medical malpractice case, a medical center should anticipate a document request for information stored on a patient portal. Similarly, other forms of databases that individuals do not anticipate can come into issue. For example, depending on the nature of a case, ESI on your Amazon ecommerce account (i.e., your Amazon orders) can become the subject of a document request.  In fact, courts truly take an expansive view of discoverable ESI in Florida.

Fort Lauderdale Consumer Law Attorney

If you are seeking to better understand ESI discovery practices in Florida and how it affects your consumer rights, it is wise to hire an attorney.  With legal counsel, you increase your chances of getting it right the first time. Attorney Brendan A. Sweeney has years of experience advising on consumer law issues.  Contact us now for a consultation.


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