Firm attorney Nicholas W. Morcom outlines that effective September 1, 2012, Rule 1.350 of the Florida Rules of Civil Procedure was amended to specifically address production of electronically stored information (“ESI”).

Parties in a state court action can no longer object to electronic discovery on the grounds that it is unnecessary. Parties should anticipate that Courts will be inclined to compel production of ESI when the requesting party’s request seeks ESI that appears reasonably calculated to lead to the discovery of relevant evidence.

Rule 1.350(b) allows the requesting party to designate the format in which the responding party is to produce electronic discovery. The responding party may then consider whether to object to the requested format. To make an informed decision about requesting or producing ESI, attorneys will need to know the types, sources, locations and volumes of potentially relevant ESI that are possessed by all of the parties.

Beyond complying with production, future litigants should be on notice of spoliation claims if ESI is not timely and properly preserved. A claim for spoliation can lead to prejudicial jury instructions, adverse inferences, affirmative defenses, a separate cause of action or, in severe situations, entry of judgment against the party.

Florida courts consider whether a party could “reasonably have foreseen the claim” at the time the ESI was destroyed or altered. In Osmulski v. Oldsman Fine Wine, Inc., 93 So.2d 389 (Fla. 2d DCA 2012), a party that had notice of a claim against it for medical damages resulting from a slip and fall did not have a duty to preserve a videotape of the fall because the defendant had not yet been sued or received a demand that the video be preserved:

…we hold that if a defendant has knowledge that an accident or incident has occurred on its property and that same defendant has a video camera that may have recorded the accident or incident, that defendant has a duty to obtain and preserve a copy of any relevant information recorded by that camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the defendant’s video operations.

This precedent reduces the likelihood that a party would be sanctioned by a Florida court if the party follows its normal document retention policy, and destroys ESI before the duty to preserve arises.