A landmark rules decision this past week by the Florida Supreme Court promises to reshape the landscape of civil litigation in the state. One particular change amending Florida’s scope of discovery rule, Fla. R. Civ. P. 1.280, to incorporate the proportionality standard from Federal Rule 26, is a significant step towards streamlining the discovery process. Proportionality now clearly applies to all forms of discovery, not just electronically stored information (ESI). The journey to this important change is a testament to the dedication and hard work of many volunteers and the Court’s commitment to improving the administration of justice.

Sometimes the Journey is as Important as the Destination. Seeing how the sausage is made in rulemaking can be educational in many ways. A journey can be remarkable and rewarding when it involves hard work, setbacks, disappointment, commitment, and perseverance. You need to be part of the process if you want to get the full reward. If you ever wondered how we end up with the rules that govern civil process, or if you want to be in on the action, I have a story for you.

Two new Florida Supreme Court cases were published on May 23, 2024 as part of the Court’s four year effort to enhance civil case management and resolution. The first case, SC2023-0962, included the welcome proportionality language mentioned above. There were changes to other discovery and case management rules, and Rule 1.280 was further amended to require certain initial discovery disclosures “within 60 days after the service of the complaint or joinder, unless a different time is set by court order” and to impose a duty to supplement discovery. The second case, SC2024-0662, included new Rule 1.202 requiring all parties to confer before filing non-dispositive motions. Other rule amendments in these two cases also advance the quality of Florida rules and bring the rules textually and policy-wise closer to their federal rule counterparts. But the proportionality language is a particularly welcome change that has been sought for some time to keep pace with burgeoning discovery and increasingly clogged civil dockets. This article focuses on that significant change and how it was accomplished.

Powerfully positive rule changes cannot occur without deliberate consideration and flexibility by the Court and tireless effort of volunteers who give their time and energy to propose rules and to comment on rules proposed by others. Many lawyers and judges selflessly toiled to provide the Court important guidance and perspective from the ranks. And it paid off.

The Journey: Background of the Florida Rule Changes

Beginning around 2010 when I was a member of the Florida Bar Civil Procedure Rules Committee, we set out to improve the Florida eDiscovery rules. In 2012, based on the Rules Committee Recommendations, the Florida Supreme Court adopted eDiscovery rules modeled on the eDiscovery rules included in the 2006 Federal eDiscovery rules. As a result of the focus on ESI, proportionality was included in the amendments to Fla. R. Civ. P. 1.280(Scope of Discovery) by providing a new subsection 1.280(d) for ESI discovery. The proportionality language in Rule 1.280(d) mirrored similar language in the then existing federal rules. The limitation of proportionality to ESI occurred because the 2012 rules were focused only on incorporating tailored eDiscovery rules.

In 2015, when the federal rules were amended, the Advisory Committee on Civil Rules worked for three years, received more than 2,300 written comments and held public hearings in Dallas, Phoenix, and Washington, D.C., eliciting input from more than 120 witnesses. One of the outcomes of that process was that proportionality language was moved to Fed. R. Civ. P. 26(b), thereby making proportionality a more prominent factor in scope of discovery. Rule 26(b) provides six factors for determining whether discovery is proportional to the needs of the case: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit, which placed increased emphasis on proportionality.

Chief Justice Roberts put his own words to the importance of proportionality in his 2015 Year End Report:

The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.

Chief Justice John Roberts, 2015 Year End Report.

Based on its enhanced position in Rule 26, federal courts placed a new emphasis on proportionality. See Rule 26 Proportionality – Think Beyond the Price Tag, JD Supra (Mar. 27, 2018). Data and information that is not proportional is not discoverable under the federal rules.

Because it made abundant sense to replicate the proportionality standard of federal rules in Florida for all discovery, not just ESI, after the 2015 federal rules amendments consideration was given to amending Florida rules to comport with some of the federal rule changes. The Florida Civil Procedure Rules Committee reviewed the federal rules and accepted comments and recommendations from a workgroup of the eDiscovery and Electronic Evidence Committee (EDEE) of the Florida Bar Business Law Section (BLS) that proposed adoption of proportionality for all discovery and not just ESI as well as other rule changes. I was a co-chair of the EDEE Workgroup. The Civil Procedure Rules Committee decided to take a step by step approach and start by adopting Fed. R. Civ. P. 37 sanctions language into Fla. R. Civ. P. 1.380, but not our other recommended changes, including proportionality. In 2019, the Florida Supreme Court accepted the amendments to Rule 1.380. In re: Amendments to the Fla. Rules of Civ. Procedure-2019 Regular-Cycle Report, 292 So. 3d 660 292 So. 3d 660, 2019 Fla. LEXIS 2249, 44 Fla. L. Weekly S 271, 2019 WL 6601627 (Fla. Dec. 5, 2019).

The BLS’s EDEE Workgroup continued to advocate that proportionality should apply to all discovery, not just ESI, along with other changes to the rules. The BLS then assigned the civil rules effort to a successor committee of which I am a member, the BLS Rules of Court Committee chaired by Russell Landy. That committee took up the standard for proportionality as well as other proposed changes to improve our civil rules.

In 2019, Florida’s Chief Justice Canady established the Workgroup on Improved Resolution of Civil Cases within the Judicial Management Council (the “Workgroup”). The call to action recognized that “Florida’s judicial branch is committed to continual improvement of the administration of justice, including enhancement of civil case management processes in order to deliver justice in a timely, cost-efficient, and accountable manner while maintaining due process.” In re Workgroup on Improved Resolution of Civil Cases, Admin. Order No. AOSC19-73 (Fla. Oct. 31, 2019). The Workgroup was tasked with examining Florida’s “laws, rules of court, and practices relating to civil procedure and case management to determine whether changes can be made to improve the resolution of civil cases.” The Administrative Order expressed the Judicial branch’s commitment to “enhancement of civil case management processes in order to deliver justice in a timely, cost-efficient, and accountable manner while maintaining due process.” The establishment of the Workgroup created a different path and another layer in the rules change process for us to negotiate.

Comments and proposals were submitted to the Workgroup from many lawyers and judges, including our BLS Rules of Court Committee. The BLS and others advocated to make proportionality a consideration in the scope of all discovery as in the current federal rules. In its final report to the Court, the Workgroup did an excellent job, but proportionality for all discovery was not included in their recommendations to the Court.

Having received numerous comments from individuals and committees of the Florida Bar, the Court selected specific recommendations of the Workgroup and tasked The Florida Bar’s Civil Procedure Rules Committeewith studying and refining the proposed civil procedure amendments. This provided another opportunity for the BLS to advance the cause for proportionality along with other recommendations by submitting them to the Civil Procedure Rules Committee. Other individuals and committees also submitted recommendations to the Civil Procedure Rules Committee. Like the Workgroup before it, the Civil Procedure Rules Committee did not choose to elevate proportionality language to an overall scope of discovery issue in its recommendations to the Court.

When the Court sought comments on the recommendations it received from the Civil Procedure Rules Committee, our BLS Rules of Court Committee obtained the backing of the entire Business Law Section and submitted recommendations directly to the Supreme Court, including our recommendation to adopt the federal standard of proportionality. Our Chair, Russell Landy participated in oral arguments before the Supreme Court. The effort paid off in a number of rules changes, including acceptance of the recommendation about proportionality. Despite a zigzag path and numerous setbacks, the job got done.

Proportionality as a Matter of Scope of Discovery is Important

Proportionality has rarely been expressed in Florida state courts as a justification for denial of unnecessary and unreasonable discovery, other than with respect to ESI under the Fla. R. Civ. P. 1.280(d). It makes little sense to apply proportionality only to ESI, as excessive depositions, interrogatories, non-ESI production, and other forms of discovery can in themselves or in combination with ESI discovery can be disproportionate for a given case.

Chief Justice Roberts was right, and the federal experience since the 2015 amendments shows that discovery as a whole must be limited by proportionality in order to be consistently efficient and effective. Federal Judges proactively and effectively use Fed. R. Civ. P. 26(b)(1) to manage the discovery in their cases. Jennifer Letourneau and Benjamin Parker v. Neutron Holdings, Inc., 2:24-CV-00463-JHCO (W.D. Wash. May 21, 2024). Without limits of proportionality, excessive and unnecessary discovery may derive from strategic reasons to encourage or coerce a settlement, from misguided efforts to uncover a smoking gun, or simply from a failure of lawyers to employ forethought and care in drafting. Far too often, use of overbroad boilerplate requests and the failure to work with the opposition to jointly manage discovery contribute to needless excess of discovery in the absence of limiting language in the rules.

The Result in Florida Rules on Proportionality

As of January 1, 2024, amended Fla. R. Civ. P. 1.280 reads as follows:

(c) Scope of Discovery. Unless otherwise limited by court order, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. (emphasis supplied)

Fla. R. Civ. P. 1.280.

The same scope limitations still remain for discovery of ESI. Now they are in renumbered subsection Fla. R. Civ. P. 1.280(e).

There are many other positive rule changes in the two new Florida Supreme Court opinions. All changes take effect on January 1, 2025. Because the amendments were not published in advance and are different than the language submitted to the Court by The Civil Procedure Rules Committee, interested persons have seventy five days from the date of the opinion to file comments with the Court. Our BLS Rules of Court Committee will remain vigilant to ensure the proportionality language has advocates if the Supreme Court revisits its rule changes in light of comments from the Bar.

I want to pause to celebrate this important milestone and recognize the achievement of the lawyers and judges who took the time to submit comments and recommendations to the court and the groundbreaking efforts of the Supreme Court Workgroup and the Civil Rules Committee. Even though I did not agree with the Workgroup and Civil Rules Committee about proportionality, I acknowledge their hard work and the progress they achieved by their recommendations to the Court, many of which were adopted in whole or part. I applaud their excellent efforts in a momentous and difficult assignment. My sole purpose is to celebrate the willingness of the Florida Supreme Court to consider many voices in an effort to draft the best rules possible and to encourage others to join the effort to develop rules for the court.

Participating in Rulemaking is Important and Rewarding

I have been on a number of committees of The Florida Bar, including the Standard Jury Instruction Committee, the Civil Procedures Rules Committee, and committees of the Business Law Section. I was also fortunate to be on a committee of The Sedona Conference that provided input to the Advisory Committee on Civil Rules that proposed the 2015 eDiscovery rules changes. Every one of these experiences was rewarding for me personally as part of processes that have improved rules. I enjoyed working with and learning from remarkable lawyers and judges.

It takes commitment and talent to draft rules, as recognized by the Court in its last sentence of the opinion proper: “The Court is grateful for the Committee’s and the Workgroup’s hard work, dedication, and recommendations. We also extend our appreciation to the commenters for their insight and assistance.” I wish to add my thanks and my pride in the work of the Florida Court and all of the volunteers and commenters.

CONCLUSION

Members of the Bar and the judiciary get the rules we deserve. If there is something that needs to be changed, become part of the solution by volunteering or at least speaking up when the opportunity presents. The benefits can include educating yourself, establishing a rapport and relationship with other advocates, and hopefully effecting the change you felt was needed. Indeed the system works.