Ride the Lightning

Florida: E-Discovery Best Practices Checklist

November 21, 2017

Hat tip to our friend Doug Austin for an excellent blog post on his eDiscovery Daily Blog reporting that the United States District Court for the Southern District Court of Florida has revised its Local Rule 16.1 on Pretrial Procedure in Civil Actions with the revisions to go into effect December 1, 2017. The amendments include an excellent new 33 point eDiscovery checklist.

The main revision in the local rules is the addition of a new subsection (K) under 16.1(b)(2) Conference Report that lists what must be included in the attorneys' report:

(K) any issues about: (i) disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (ii) claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert those claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502: and (iii) when the parties have agreed to use the ESI Checklist available on the Court's website (www.flsd.uscourts.gov), matters enumerated on the ESI Checklist

Lecturing at the Masters Conference, our friend and eDiscovery thought leader Ralph Losey called the rule revision and checklist a "fine addition" to the local rules, indicating that his only complaint is that the rule change doesn't go far enough on Federal Rule of Evidence 502 and Rule 502(d) orders for non-waiver of privilege. He objected to the checklist's use of generic bullet points, instead of numbers. Ralph, in a handout from the conference session, changed the bullet points to Roman numerals and letters for easier referencing. He also provided comments regarding each of the items (in blue italics to make them easily distinguishable). You can find the checklist with Ralph's comments here.

It doesn't matter where you practice – this is a very good checklist to use!

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