Beast of (Shifting) Burden: What Constitutes Undue Burden Sufficient to Shift ESI Production Costs Under Fla. R. Civ. P. 1.280?

Basically, when you have to find and share a lot of electronic information for a lawsuit, it can cost a lot of money. In Florida, the law says that if it’s too hard or expensive for the person being asked for the information to get it, then the person asking for it might have to pay for it instead. There’s no specific rule for what makes it too hard or expensive, so we can look at federal law and cases for some ideas. In 2012, the Florida Supreme Court changed a rule about how electronic information can be requested in a lawsuit. Now, if it’s too hard or expensive to get the information, the court can make the side asking for it pay for some or all of the costs. The court can also look at a small bit of the information before deciding. So far, no Florida court has used this rule, but it’s similar to a federal rule that has been used. If you ask someone for electronic information and it would be really hard or expensive for them to get it, they can ask the court to protect them from having to do it. If the information is stored in a way that makes it difficult to get, the court is more likely to agree to this. Federal courts have separated data into five categories, with the most accessible being active, online data and the least accessible being erased, fragmented, or damaged data. According to the court case Zubulake v. UBS Warburg LLC, the first three categories are considered accessible and the last two are considered inaccessible. This means that it is easier to access and use the first three categories of data compared to the last two. If a party claims that finding and producing electronic information is too difficult or expensive, the burden is on the other party to show why it’s important to have the information. Federal courts consider different factors to decide who should pay for the costs. These factors include how specific the request is, whether the information is available elsewhere, and the cost compared to the importance of the case. In some cases, the court may decide that both parties share the costs. In one Florida case, the court ordered the party requesting the information to help pay for the costs because the other party had already spent a lot of money on the discovery process. But this is not common in Florida federal courts. In some court cases in Florida and across the country, parties have argued about who should pay for the costs of finding and producing electronic documents. Courts have considered many factors when making these decisions, including the total costs and whether the requested information could be found in other ways. Sometimes the party asking for the documents has to pay some of the costs, and sometimes the party with the documents has to pay. Florida courts often look at federal court decisions to help them make these decisions because the rules are similar. When filing a motion to ask the other party to pay for the costs of electronic evidence in a legal case in Florida, it’s important to get a statement from someone at the other party’s company explaining how their electronic evidence is stored and how much it would cost to get it. It’s also helpful to get a small amount of the evidence to show the court how hard it is to get. Once it’s clear that getting the evidence is too hard and expensive, the parties should be ready to compare the reasons why they need the evidence and how important it is. This will help the court decide who should pay for the costs. Some previous court cases in other states have given guidelines for this, so it’s useful to refer to those when making a case. These are references to legal cases and attorneys from a law firm in West Palm Beach. The cases are from different courts and involve different legal issues. The attorneys mentioned are from the law firm and specialize in business litigation. The firm is part of the General Practice, Solo and Small Firm Section, whose goal is to promote justice and improve legal practices.

Source: https://www.floridabar.org/the-florida-bar-journal/beast-of-shifting-burden-what-constitutes-undue-burden-sufficient-to-shift-esi-production-costs-under-fla-r-civ-p-1-280/