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Fall 2012
IN THIS ISSUE
d&G Lawyer News
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Frequently Asked Questions
Q. What is the effective date of mandatory electronic service of court pleadings?
A. On or about June 21, 2012, the Florida Supreme Court has also made it mandatory that all documents required or permitted to be served on another party must be served via electronic service beginning September 1, 2012. IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION – EMAIL SERVICE RULE, No. SC10-2101 (Fla. 2012) (corrected by 37 Fla. L. Weekly S436a).
Q. What email address do I send the court pleading to?
A. Upon appearing in a proceeding an attorney must serve a designation of a primary e-mail address and may designate no more than two secondary email addresses. Id. at 22. Every document filed by any attorney must be sent to the primary email address and any designated secondary email addresses. Id. If an attorney does not designate an email address, all documents may be served on that attorney at the e-mail address on record with The Florida Bar. Id.
Q. What if a party is not represented by counsel?
A. If a party is not represented by counsel and has not designated an email address for the service of court documents, then service is accomplished by serving the document or mailing it to the party at their last known address. Id. at 23-24.
Q. Are there any requirements for the form of e-mail service?
A. Yes. Documents to be served must be in .PDF format. Id. at 23. The subject line of all emails serving documents must say “SERVICE OF A COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served. Id. The body of the email must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. Id.
Q. What do I do if the email is returned undeliverable?
A. If the sender learns that the email did not reach the address of the person to be served, the sender must immediately send another copy by email or serve a copy by mail to the party’s attorney or party’s last known address. Id.
Q. When is an email deemed served?
A. An email is deemed served on the date it is sent, so long as it is sent at or before midnight on that date. Id.; IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION – COMPUTATION OF TIME, 37 Fla. L. Weekly S486a (Fla. 2012).
Q. How do the new rules on electronic service change the rules on computation of time?
A. Email service is treated as service by mail for the computation of time. Id. Recently, the Florida Supreme Court released an opinion amending the Rule 1.090 of the Florida Rules of Civil Procedure and clarifying how time will be calculated for electronic service. IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION – COMPUTATION OF TIME, 37 Fla. L. Weekly S486a (Fla. 2012). As with serving a document via U.S. Mail, “[w]hen a party may or must act within a specified time after service and service is made by…e-mail, 5 days are added after the period that would otherwise expire….” See Id. at 6.
Q. What do I do if I am sending an email with large attachments?
A. If your email together with its attachments exceeds 5 MB, the email must be divided and sent in separate emails, each of which does not exceed 5 MB in size. IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION – EMAIL SERVICE RULE, No. SC10-2101 at 23. If you send separate emails, each email must be sequentially numbered in the subject line. Id.
Q. What changes have been made to the Florida Rules of Civil Procedure regarding electronic discovery?
A. On July 5, 2012, the Florida Supreme Court adopted amendments to the Florida Rules of Civil Procedure that expressly authorize the discovery of electronically stored information from parties and from non-parties. IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE – ELECTRONIC DISCOVERY. 37 Fla. L. Weekly S442a, 4 (Fla. 2012). The new rules provide that electronically stored information is now available through either a request for production or interrogatories. Id. at 4, 7. The new rules also provide for procedures for the parties to discuss the production of electronic discovery during the case management conference (consistent with the current rules, case management conferences are optional for ordinary civil cases and mandatory for complex civil cases). Id. at 2-3.
Q. What is the effective date of the new rules regarding electronic discovery?
A. The new rules are effective September 1, 2012. Id. at 2.
Q. Are there any limitations on the extent of electronic discovery available in the new rules?
A. Any person may object to the discovery of electronically stored information from sources as not reasonably accessible because of burden or cost. Id. at 6. However, even if this showing is made, the court may still order discovery if the requesting party shows good cause. Id. The court may also specify conditions of the discovery, including ordering the requesting party to pay some or all of the expenses associated with the e-discovery. Id. In balancing the interests of the parties the court must limit the frequency or extent of e-discovery if the court determines that “(i) the discovery sought is unreasonably cumulative or duplicative, or it can be obtained from another source or in a manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Id.
The Committee notes to the new rules provide some guidance on how to determine good cause, proportionality, and reasonableness under the new rules. Id. at 6-7. The Committee notes state:
In evaluating the good cause or proportionality tests, the court may find its task complicated if the parties know little about what information the sources at issue contain, whether the information sought is relevant, or how valuable it may be to the litigation. If appropriate, the court may direct the parties to develop the record further by engaging in focused discovery, including sampling of the sources, to learn more about what electronically stored information may be contained in those sources, what costs and burdens are involved in retrieving, reviewing, and producing the information, and how valuable the information sought may be to the litigation in light of the availability of information from other sources or methods of discovery, and in light of the parties' resources and the issues at stake in the litigation.
Id.. at 6-7 (Emphasis added).
Q. In what form will e-discovery be provided?
A. The new rules provide that the requesting party may specify the form in which electronically stored information is to be produced. However, if no form is specified or if the requested form is objected to, then the responding party must state the form or forms it intends to use and it must be in a form or forms in which the electronically stored information is ordinarily maintained or in a reasonably usable form. Id.. at 8-9.
For more information, contact Patrick McNamara or Eric Nowak at (813) 229-2775, or by email at pmcnamara@dgfirm.com and enowak@dgfirm.com.
The information on this website (Newsletter/ Email) is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
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