TO TWEET OR NOT TO TWEET? A WARNING TO ALL FLORIDA LITIGANTS
By now most people are trained to be mindful of what they say in their emails because once you hit “send” those words are out there for the world to see and they can’t be taken back. Nevertheless, people tend to be much less censored when it comes to their IMs, status updates, and tweets. Indeed, for many, social media has become a revolutionary business tool. More and more, individuals as well as companies are using Twitter, LinkedIn and Facebook in order to store critical business information.
However, as of September 1, 2012, amendments to the Florida Rules of Civil Procedure make it clear that any type of Electronically Stored Information (or “ESI”) including tweets, instant messages and texts will be discoverable during the course of litigation.
Because ESI has become such an integral part of how individuals and companies interact with one another on both a personal and professional level, oftentimes electronic information is very relevant to the determination of cases. As a result, Florida courts have had to adapt their approach to how they handle ESI discovery.
On July 5, 2012, the Florida Supreme Court adopted amendments to the Florida Rules of Civil Procedure regarding electronic discovery, which track the Federal Rules of Civil Procedure.
For example, under Rule 1.200 courts can now consider various issues related to electronic discovery during the case management conference such as the possibility of obtaining admissions of fact, the voluntary exchange of documents, and the possibility of an agreement between the parties addressing the extent to which ESI should be preserved and the form in which it should be produced.
While Rule 1.280 expressly authorizes the discovery of ESI, it also provides specific limitations on discovery. If ESI is not reasonably accessible because of undue burden or cost, is not discoverable absent a showing good cause. On the other hand, if production of ESI is ordered, the court has the authority to shift the cost to the requesting party or limit ESI discovery if it can be obtained in a less burdensome or less expensive manner.
Electronic discovery is already one of the most tedious and expensive aspects of litigating a case. While the new rules may give rise to the production of highly sensitive information, they also allow courts to address the reasonableness of ESI discovery and limit the possibility of abusive discovery practices.