PBCBA BAR BULLETINS pbcba_bulletin_sept2018 | Page 16

Resolution of ESI Disputes
(a suggested practical approach)
ROBERT WILKINS
The need for courts and lawyers to deal with Electronically Stored Information (“ESI”) is growing exponentially. However, state court
judges face challenges beyond the federal judiciary. Federal district courts have law clerks and magistrate judges for ESI discovery
related issues and the magistrate judges have their own law clerks. State court judges do not. With the growing caseload and
shrinking court budget, the burden on state court judges to handle their cases and keep abreast of the rapidly changing technology
and related case law is substantial.
Effective ESI dispute resolution is required to “secure the just, speedy, and inexpensive determination of every action,” as mandated
by Florida Rule of Civil Procedure 1.010. The constant changes in the technology available for ESI related discovery significantly
impacts the practice of law since lawyers are required to “keep abreast of changes in the law and its practice, including the benefits
and risks associated with relevant technology.” See, ABA Commission on Ethics 20/20.
Effective January 1, 2017, Rule 4-1.1 (Competence) of the Rules Regulating the Florida Bar was amended. The Comment to the Rule
elaborates on the lawyer’s need to have an “understanding of the benefits and risks associated with the use of technology” in the
representation of a client. The burden of resolving ESI disputes can be lessened for state court judges with the aid of attorneys with
technological competence concerning ESI related issues.
Florida Rule of Civil Procedure 1.490(b) allows for the appointment of attorneys as special magistrates. While appointment requires
consent of the parties, it is suggested that the parties give careful consideration to consenting to a reference to an attorney with
knowledge of the technology, related law, and best practices in this rapidly changing area. Rather than waiting months for an
evidentiary hearing on ESI-related disputes, utilizing practitioners with specialized ESI knowledge under the special magistrate
option is more expeditious and less expensive.
A potential limitation on this process is the vague restriction in Florida Rule of Civil Procedure 1.490(d) that “[m]agistrates shall not
practice law of the same case type in the court in any county or circuit the magistrate is appointed to serve.” However, Florida Rule
of Judicial Administration. 2.505(d) allows parties to stipulate “concerning the practice or procedure in an action,” and Florida Rule
of Civil Procedure 1.201(b)(1)(K) allows referral to “a magistrate ... [or] other neutral.” This appears to allow the parties to agree to a
“neutral” to resolve ESI disputes. Even if the disputes cannot be resolved, the issues can certainly be narrowed for a more efficient
presentation to the court for resolution.
The Real Estate CLE Committee of the Palm Beach County Bar Association presents
R EAL E STATE T RANSACTIONS FOR D UMMIES :
A Guide through the Process from Contract to Close
What you Should Know to Protect your Client
T HE R EAL E STATE S ALES C ONTRACT : Identifying key terms and deadlines to
ensure a smooth closing process.
W HO M ANAGES THE T RANSACTION FROM C ONTRACT TO C LOSE : The role of the
Closing Agent, Lender, Buyer, Seller and Real Estate Agents in the process.
W HY I NSPECTIONS , S URVEYS , T ITLE AND L IEN S EARCHES ARE IMPORTANT .
U NDERSTANDING THE PURPOSE OF T ITLE I NSURANCE .
K EY D OCUMENTS IN A R EAL E STATE TRANSACTION : Closing Disclosures,
Affidavits, Deeds, Title Commitments and Policies.
C LOSING DAY APPROACHES : Finalizing your closings costs, meeting any last
minute requirements and preparing for closing day.
C LOSING DAY HAS ARRIVED , ALL THE STRESS , ANTICIPATION , INFORMATION
PROVIDED , AND ISSUES ARE ALL RESOLVED : What happens now? What you need
to know to be ready!
AFTER CLOSING : Recording, releases, title policies.
Program presented by Edwin Walker, III, Esq., Walker Law Firm, P.A.
Sponsor
Wednesday, October 17, 2018
11:30 a.m. - 1:00 p.m.
Lunch included
Bar Association Office
1507 Belvedere Road
West Palm Beach
RSVP online @
Palmbeachbar.org
1.0 CLER; Certification credit 1.0 in Real Estate. Cost: $35 members; $75 non-members. All refund requests must be made no
later than 48 hours prior to the date of the seminar. Register online at www.palmbeachbar.org or by mail (return this form with
your check). Those registering after October 10, add $10 late fee.
Name: ______________________________________________ Email address: _____________________________________
____ I will not be able to attend the seminar, however I would like to order the audio. The cost is the same as listed above, however please
include $10 for shipping and handling. Allow one week for delivery. PBC Bar Association, P.O. Box 17726, W. Palm Beach, FL 33416. 561-687-
2800. 10.17.18 Real Estate