New ESI Order in Palm Beach 7/1

In Palm Beach County, Florida there is a new discovery of electronically stored information (ESI) order waiting for practitioners in cases involving business torts, professional malpractice, antitrust, business transactions, IP, shareholder derivative actions, securities, or trade secret cases. Circuit Court Judge Meenu Sasser of the 15th Judicial Circuit Court has even mandated that within 20 days of the order, the parties are to schedule a “meet and confer” conference which shall occur within 60 days of service of the Order. It is interesting to note that The Florida Bar Civil Rules Standing Committee voted against a federal rules style mandatory meet and confer when I chaired the effort to amend the rules to include ESI. Counsel for the parties are to discuss whether this cases are to be considered complex litigation case, as in Fla. Rule Civ. Pro. 1.201. Topics for the conference include: ESI custodian information; structure of client computer systems, software, devices, and relevant email information; ESI policies; need for an ESI clawback agreement; costs; and whether ESI issues could significantly protract the litigation. Hmm, looks like a call for effective Special Masters or E-Neutrals... See Standing Order effective for new cases starting July 1, 2016 here-- http://15thcircuit.co.palm-beach.fl.us/documents/42596/0/ESI-Order.pdf

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

Join me next Tuesday, May 14th for E-Neutrals CLE

The Supreme Court of Florida approved proposed E-discovery rules for state cases last fall. The court adopted amendments to case management to include electronically stored information or ESI. The new rules have affected the state’s diverse legal community of trial attorneys. They aim to streamline case management, but also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting a Tuesday afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

Save the Date (5/14) for E-Neutrals in E-Discovery Disputes CLE

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

Join me March 1, 2013 for E-Discovery Conference

I'll be speaking on the following panels at next week's ACEDS annual E-Discovery Conference: What Florida’s Bouts with New E-Discovery Rules Teach Lawyers and Corporations Florida’s first ever rules for discovery of electronically stored information in civil courts just took effect. They caused a sea change in the way the state’s many trial attorneys practice, and have imposed novel burdens on the Florida court system, parties in litigation, visiting litigants, and the multitude of large and small businesses inhabiting the state. The rules have created some efficiencies in civil procedure, but they have also tested the infrastructure of county and circuit courts from Pensacola to Key West. Though Florida is not one of the first to join the E-discovery fray, its legal and corporate diversity, division of rural and metropolitan areas, and abundance of international businesses make it a melting pot that lawyers, rulemakers, and E-discovery professionals nationwide and at the federal level are eying closely. What new liabilities and opportunities have the rules created, and how can you learn from them? Where are lawyers, litigants and judges most vulnerable to the perils of electronic evidence? What tools and services do you need to excel at E-discovery as the volume of your client’s data balloons? How can you navigate the rules to reduce costs? Can mediation by an E-Neutral save money? And how do you protect against E-discovery malpractice? On this panel, legal experts from across the state, including the attorneys who crafted the rules, will give you important lessons gleaned from this unsettled legal terrain. Double-Edged Sword of Social Media-- Boost Your Bottom Line While Avoiding Risk As Facebook hits one billion global users and Twitter approaches a half billion, it’s safe to say that social media is here to stay. Some organizations and law firms have embraced it for the unique marketing and networking avenues it affords, and the business it can drive. Others pass on its benefits because of the clear reputational and legal risks it presents. Social media can open doors to engage stakeholders and potential clients, but it is hard to monitor and even tougher to incorporate into existing information governance frameworks. The stakes are high. When the threat of a lawsuit strikes, it is crucial to know who is saying what, where it is located, and how to preserve and collect it for litigation. How can you use social media to drive business success, while reigning in the dangers it presents? What does an effective employee social media policy look like, and how can you integrate it with compliance policies that are already in place? How do you govern social media in the cloud? What are the best ways to preserve, collect, and produce social media? And how do you decide which methods are best? In this panel, e-discovery and technology experts from top organizations and law firms show you how to use and regulate social media in a way that is safe, effective, and profitable. More about the E-Discovery conference here: http://www.ediscoveryconference.com/panels

Electronic Everything now in Effect!

Effective September 1, 2012, E-Discovery amendments to the following existing Florida Rules of Civil Procedure drafted in my subcommittee are effective: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at--http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf Additionally, mandatory E-service begins in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by E-mail under Florida Rule of Judicial Administration 2.516 is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail 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. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. E-mail service will be mandatory for attorneys practicing in remaining divisions on October 1, 2013. See E-Service opinion at--http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf Finally, though civil ECF is well-established in Orange County, new electronic filing requirements adopted by the Fifth District Court of Appeal begin today by Administrative Order--http://www.5dca.org/Clerk/Administrative%20Orders/AO5D12-03_08_12.pdf. Those who practice in this area should register with the appellate court's eDCA system-- http://edca.5dca.org Incidentally, I tried uploading a Mediation Report via eDCA this morning and there are presently no upload categories for documents appellate court-appointed neutrals file, such as reports and evaluations. I have contacted the clerk about this with my filing.

E-Everything coming to Florida Courts

Effective September 1, 2012, E-Discovery amendments to the following existing Florida Rules of Civil Procedure become effective: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf and The Florida Bar News story from forthcoming August 1, 2012 issue quoting me-- http://bit.ly/MEAxsu Additionally, mandatory E-service begins September 1st in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Under Florida Rule of Judicial Administration 2.516, service by E-mail is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail 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. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. When the rules take effect on September 1, attorneys practicing in the criminal, traffic, and juvenile divisions of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013. See E-Service opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf Finally, all 67 county clerks of court have been directed to accept E-filings through the statewide e-portal in the civil divisions and new electronic filing requirements will become effective in the civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on April 1, 2013. As civil ECF is well-established in Orange County, this is nothing new. Next, the new electronic filing requirements the Court adopts will become effective in the criminal, traffic, and juvenile divisions of the trial courts, as well as for appeals to the circuit court in these categories of cases, on October 1, 2013. See E-filing opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf

E-discovery rules in FL at long last!

Effective September 1, 2012 are amendments to seven Florida civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). This is the culmination of a six-year effort initially chaired by me and with the help of members of my subcommittee and the Civil Rules Standing Committee of the Florida Bar. These rules will further allow for the ability for neutrals to play a role in dispute resolution of ESI issues in state court cases. See full opinion and new rules here - http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf and bulletin quoting me "This is the culmination of a rigorous effort to modernize procedure in Florida to include electronically stored information,” attorney Lawrence Kolin, of Winter Park, former chair of the e-discovery rules, told the Association of Certified E-Discovery Specialists® - http://aceds.org/news/florida-ediscovery-rules-take-effect-september-1

Orlando Mediator blog now an official ABA "blawg"

Just a brief post to announce that the American Bar Association has officially listed this blog as one of its law blogs or "blawgs." The ABA's Blawg Directory is promoted by the distinguished ABA Journal online and is touted as a comprehensive directory of continually updated law blogs. Help this blawg reach the "Blawg 100," an annual listing of the top one hundred blawgs in the law, now in its fifth year. Details will be posted when voting opens this year and the hope is that this blog will be the first devoted to mediation to make the list. Thanks for your readership and continued support of this endeavor which is a labor of love published in the interest of expanding the use of mediation and alternative dispute resolution in the 21st century. My mediation practice began in 2001 and continues to push the envelope in creative use of ADR. As an example, recent topics include the use of early ESI mediation to avoid protracted E-Discovery battles, allowing parties in litigation to re-focus their cases on the merits. I look forward to continuing exploring new topics on this blawg as trends develop to keep professional neutrals and advocates alike abreast of the latest in this field. Orlando Mediator can now be found as this URL on ABA: http://www.abajournal.com/blawg/Orlando_Mediator

Neutrals may ease anxiety over Florida’s new E-discovery rules

This podcast featuring my commentary just in from an interview with the Association of Certified E-Discovery Specialists (ACEDS) Editorial Director, Robert Hilson: On March 7, the Florida Supreme Court heard argument on proposed E-discovery rules for state cases, the first such rules for the fourth largest state. The court has put them on fast track, and could approve them by the end of the year. The rules will affect the state’s diverse legal and corporate community and its 63,000 active attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to e-discovery. Neutral third parties, such as special masters, mediators and referees, may be able to assist in these instances. These so-called “neutrals” can shape discovery plans, allocate costs and suggest and create efficiencies that did not exist. Their services are not limited to grappling with old or new rules, or to discovery disputes. Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar committee that helped craft the e-discovery rules the Supreme Court is considering. In this ACEDS podcast, he tells how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. “I try to focus parties on the merits and try to get them off using e-discovery as a sword or shield,” says Kolin. “Mediation is an avenue that can present parties with significant cost-savings if performed early enough in the litigation.” Podcast introduction: http://aceds.org/aceds-ediscovery-mediation-podcast-with-lawrence-kolin Listen to .mp3 here: http://aceds.org/sites/default/files/ACEDS%20Mediation%20Podcast%20with%20Neutral%20Lawrence%20Kolin.mp3

E-Neutrals and FL ESI rules

I spent the last couple of days at the national annual conference of the Association of Certified E-Discovery Specialists (ACEDS). There were many vendors, attorneys and even court personnel attending. Of particular interest, was a pilot program developed by Clerk of the U.S. District Court for the Western District of Pennsylvania, Robert Barth. That court has identified special masters and E-neutrals as fulfilling the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (ESI) during the litigation process. The parties in those cases reportedly benefit from the appointment of Electronic Discovery Special Masters (EDSMs) in appropriate cases. Any findings of fact or conclusions of law reached by the EDSM will be presented to the court as a report and recommendation, to which the parties have the opportunity to object, prior to a de novo review by the court (see details at - http://www.pawd.uscourts.gov/Pages/ediscovorey.htm). Florida's draft rules do include a case management topic of optional appointment of special magistrates in the event such issues need to be referred. This was discussed during an ACEDS panel I served on with my successor on the Florida Civil Rules Committee, Kevin Johnson. We also spoke on the likelihood of a decision from the Supreme Court of Florida concerning the proposed amendments to the Florida Rules of Civil Procedure and any time frame for implementation. Given the largely friendly reception during oral argument, it appears adoption of the language is imminent, but the forthcoming opinion could delay the effective date of the rules, given the Court's concern for educating the bench and bar.

Supreme Court of Florida Considers E-Discovery Rules

In a development that may lead to the use of more special magistrates and special masters deciding discovery disputes, this morning, the Supreme Court of Florida heard oral argument in case SC11-1542 on the amendments to the Florida Rules of Civil Procedure concerning E-Discovery. The proposed amendments add electronically stored information or ESI into existing rules and are mostly modeled on the federal rule changes implemented by Congress in 2006. Following a multi-year effort by the Civil Procedure Rules Subcommittee on E-Discovery that I formed in January 2006, these rules were presented to the Florida Bar Board of Governors and sent on to the court for comment and adoption. Justice Barbara Pariente, with her iPad prominently displayed on the bench, began to pepper Chair, Kevin Johnson (whom I tapped as my successor upon my terming off the Civil Rules standing committee) shortly after he began. She engaged in congratulating the seemingly unanimous approval by the members of the Bar in the run-up to making these rules official. Justice Pariente continued with questions regarding her experience as a litigator in producing documents in products cases. Mr. Johnson explained that the only difference from the federal rules is the lack of a mandatory meet and confer early in the case. However, there is an available category found in the state case management rules 1.200 and 1.201. Justice Quince was concerned over the format of production of the items requested by a litigant and that those decisions are left to the trial judge. Justice Perry was concerned about the party having the best expert to hide the ball with an inexperienced line judge. Doug Caldwell of the Rumberger firm appeared to applaud the effort, but on behalf of the Florida Defense Lawyers, did not feel the federal rules go far enough. He cited efforts in the federal rules advisory committee to remedy the inefficiencies experienced in that system. Mr. Caldwell echoed Henry Trawick’s comments filed about the burden on the producing party. His anecdote of a ‘mom and pop’ store with an iPhone was met with skepticism from Justice Pariente. Justice Polston pointed out the existing rules allow for trial judges to argue scope in 1.280. Retired Circuit Judge Ralph Artigliere, with whom I’ve taught at OSCA’s Florida Judicial College, commented on preservation and the existing case law for spoliation that developed out of products and malpractice cases. He added that Business Courts can make local rules more specific to manner of production. He also mentioned the change in culture reflecting a burden on lawyers to understand the evidence their clients may have and responsibility to the court, Education of the bench and bar was discussed and Justice Lewis went as far as talking about mandatory court education or bar CLE to be coordinated by the budget-less Civil Rules committee. Not a clue as to the timing of implementation of these rule amendments was given during the thirty-seven minute argument, though I liked Justice Pariente's emphasis on wide agreement of committee and bar to pass rules. Fingers crossed! See complete oral argument at: http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1542