What’s new in Fla. Bar 02.24.17

WHAT’S NEW IN ADR Presented by Arthur Garcia, Jr.of Upchurch WatsonWhite & Max

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ESI AND MEDIATION THE USE OF THE NEUTRAL

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WHAT IS ESI, AND WHERE IS IT HIDING?1. ESI means electronically stored information.2. If you have a smart phone, you have ESI in your pocket or purse.3. Most information today is stored electronically, and little is ever

really gone forever. The challenge is retrieval and production in a cost effective fashion.

4. ESI takes many forms; letters, contracts, architectural design, plans, general documents, memos, emails and their attachments, text messages and all the metadata that goes along with these items.

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IS METADATA INCLUDED IN ESI,AND WHAT IS METADATA?

Web pages often include metadata in the form of meta tags. Description and keywords meta tags are commonly used to describe the Web page's content. Most search engines use this data when adding pages to their search index.

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WHY SHOULD WE CARE ABOUT ESI?

1. ESI is becoming a major part of discovery and therefore discovery disputes and abuse.

2. ESI discovery in addition to creating a proliferation of disputes between parties has also resulted in spiraling discovery costs.

3. It is no longer sufficient to print out documents and send them in response to a discovery request. Parties want the actual electronic format of documents and images including the metadata that is associated with the items to be produced.

4. Parties want everything related to a topic and not what is just easily accessible.

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STATE AND FEDERAL COURTS HAVE AMENDED CIVIL PROCEDURE RULES SPECIFICALLY RELATING TO ESIThe 2010 Florida Handbook on Civil Discovery Practice devoted 17 pages to ESI. That grew to 47 pages in 2016.

Committee notes say the Florida Rules of Civil Procedure encourage cooperation and transparency during meetings between counsel early in a case to try and agree on the scope of preservation and discovery and methods of production. (Rule 1.280 committee note).

Both state and federal procedural rules have been amended to better address ESI discovery and sanctions for failure to preserve.

Amendments to state and federal rules are partially based on the Sedona Conference and its Sedona Principles and Cooperation Proclamation. The cornerstones of the proclamation are cooperation and proportionality.

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DUTY TO PRESERVE AND SPECIAL CONSIDERATIONS INVOLVING ESI

Florida law is unique and unsettled when it comes to evidence preservation and what constitutes spoliation and the sanctions that can be imposed.In general, a duty to preserve can arise from many sources; court orders, subpoenas, government regulations, statutes, contracts, discovery requests, and the common law.

LEAGUE OF WOMEN VOTERS OF FLORIDA V. DETZNER, 172 SO.3D 363 (FLA. 2015)

2012 Florida Supreme Court amends the rules of civil procedure addressing ESI.

2015 Federal Rules amended, also addressing preservation of evidence.

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DUTY TO PRESERVE AND SPECIAL CONSIDERATIONS INVOLVING ESI (CONT.)The retrieval, collection and production of ESI can be complex, expensive and its failure can lead to negative consequences for both counsel and client.A printout of information and emails may not be sufficient or the equivalent to data in its original electronic format.Removal of internal metadata from a document which might include information as to who created the document, its creation date, last date accessed, when modified, with whom it has been shared and other pertinent information can constitute an alteration of the original, and arguably constitute spoliation resulting in sanctions

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ADR AND ITS ROLE IN THE DISCOVERY OF ESI

When Dealing with ESI, Numerous Issues Can Arise

The scope of the evidence to be preserved

The manner of preservation

The method of production

Preservation of privileged, proprietary trade secrets and confidential information

Procedures when irrelevant or privileged information has been inadvertently disclosed

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ENGAGING A NEUTRAL EARLY MAY BE THEONLY WAYFlorida Handbook on Civil Discovery practice specifically contemplates the use and assistance of neutrals in ESI discovery as a way of limiting costs without assistance.

“It may be appropriate for the parties to retain third party neutral experts in some cases with unusual or complex technical issues or other e-discovery challenges such as search of large disorganized collections of ESI.”

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HANDBOOK SETS FORTH TEN PRACTICAL STEPS FOR HANDLING ELECTRONIC EVIDENCEPlan to secure relevant ESIPlan to secure the foundation needed to admit ESIRequest admissions of ESI authenticityWhen in doubt, preserveUse summaries and charts rather than voluminous printouts when presenting ESI to the trier of fact

Check public sources and social mediaUse competent witnesses to obtain publically available evidenceCurb client’s self-help effortsAdvise the client of the duty to preserveCooperate with opposing counsel

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ADVANTAGES OF ENGAGING A NEUTRALIN ESI DISCOVERYControl of information and cost in a confidential setting.

Avoidance of sanctions for destruction, spoliation and failure to make complete and proper disclosure and production

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ISSUES THAT CAN BE RESOLVED1. Key words to use in searching ESI2. Preparation of privilege logs3. Preservation issues and methods4. Forms of production5. Narrowing of issues for court involvement and

determination

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WHAT THE NEUTRAL CAN SEEK TO ACCOMPLISHIdentify fair and practical methodsof identifying relevant ESIMethods of productionTiming of productionProtection of confidential and proprietary informationSearch terms

Helping parties retain self-

determinationCreation of an e-discovery planIdentify the need for specialized tech support to be a part of the processCost allocation and timingDevelopment of a mechanism to address future ESI discovery disputes

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WHEN SHOULD ESI MEDIATION BE USED? ESI neutrals are best

used early in the litigation to help develop an ESI discovery plan

Once the planning process is initiated, the parties can

reconvene with the neutral’s assistance to evaluate and modify the plan and discuss whether the parties need to involve IT experts.

Once an ESI discovery plan is agreed to by the parties they

can ask the court to incorporate it into a case management plan

with court oversight to adherence.

Mediation seeks to:• Facilitate

communication between the parties

• Promote party created solutions

• Help identify and clarify issues

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A TECH SAVVY MEDIATOR CAN:Provide an educational functionProvide needs assessment. Not of case merits but rather gaps in tech knowledge, timetables and expert involvementFacilitate discussions, as opposed to evaluating the matter, in a cooperative and courteous mannerEncourage involving parties technical support persons to address what’s possible and finding creative solutions

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HE/SHE ALSO CAN:Narrow contested issues including:•Evidence preservation•Search techniques•Privilege protection•Clawback procedures if confidential, privileged or proprietary information is inadvertently disclosed•Satisfy “meet and confer” requirements before seeking court intervention

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INITIAL PHONE CONFERENCES CAN SAVE MONEY AND TIMEA telephonic conference can set an initial agenda for an in-person meeting and should include issues of:• ESI preservation• Scope of needed discovery;

proportionality and cost should be key considerations.

• Production issues and assessment of counsel’s tech knowledge about client’s systems

• Deadlines

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FOLLOWING A TELEPHONIC MEETING THE PARTIES

SHOULD BE READY FOR THE ‘MEET AND CONFER’

PART OF THE PROCESS

The parties should be encouraged to bring their respective IT and e-discovery experts.

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THE E-MEDIATOR’S AGENDA SHOULD INCLUDE:1. Exploration of the parties’

information systems and capabilities

2. What is reasonably accessible3. The scope of ESI to be reviewed

and preserved4. Identification of relevant and

discoverable ESI5. Search parameters and review

methods6. ESI to be produced and ESI to be

withheld from production

7. Formats for preservation and production

8. Time and manner of production

9. Use of phased e-discovery

10.Procedures for inadvertent disclosure

11.Need for protective orders

12.Compliance and enforcement

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HYBRID MEDIATIONAND ARBITRATION TWO APPROACHES

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HYBRID PROCESSESARB-MED

The process begins as an arbitration. An award is rendered by the arbitrator, but it is not shared. With parties’ agreement, the arbitrator then mediates the same matter. If an agreement cannot be reached, the arbitrator’s award is unsealed and shared.

MED-ARB The mediator first tries to assist the parties in a self-determined resolution as a mediator and if that fails changes roles to arbitrator/decision maker.

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MEAC OPINIONS HAVE ADDRESSED THE DUAL ROLE IN AN ARB-MED OR MED-ARB PROCESSMEAC does not address questions directed solely to arbitration however they do address issues of overlapping mediation and arbitration.MEAC opinion 2015-003 involved a matter first mediated and at the request of the parties asked the mediator to arbitrate the matter when it did not settle in mediation. The majority of the committee held that the parties were exercising their right of self-determination in deciding whether to have the prior mediator act as an arbitrator in the same case.Florida Mediator Ethics Rules do not prohibit a mediator serving as an arbitrator in a case he or she previously mediated.

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MEAC OPINIONS (CONT.)A mediator who will later arbitrate the same matter must ensure the parties:1. Are exercising self-determination in their decision2. Are voluntary agreeing to the selected mediator as arbitrator3. Are advised of other methods of available ADR4. Understand the implications of the change in roles

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MEAC OPINIONS (CONT.)

A mediator who will later arbitrate the same matter must ensure the parties:1. Are exercising self-determination

in their decision2. Are voluntary agreeing to the

selected mediator as arbitrator3. Are advised of other methods of

available ADR4. Understand the implications of

the change in roles

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MEAC OPINIONS (CONT.)When the mediator changes roles from mediator/facilitator to arbitrator/decision maker, the participants must be made aware when making the decision that there can be possible conflicts of interest as well as a loss of confidentiality.If the parties wish for the mediator to change roles, it is best to obtain the participants agreement in a writing setting forth the above.Failure to fully explain the possible conflicts, loss of confidentiality and impartiality to the parties in advance of the mediator’s change in roles could be the basis for vacating a binding arbitration award. F.S. 44.104 (10)(b)

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MEAC OPINIONS (CONT.)Once the mediator’s role changes from facilitator to decision maker, it is a one-way evolution, and the arbitrator cannot return to the role of mediator.While MEAC does not prohibit MED-ARB, MEAC opinion 2015-03 contains the following warning:“In summary, while it is not expressly prohibited for a mediator to serve as an arbitrator in the scenario described, The MEAC believes that doing so is inherently laden with hazards and suggests great caution for any mediator that accepts this change in role.”

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ARB-MED• It is not permissible to serve

as a general magistrate and mediator for the same case

• MEAC opinions 2015-003 and 2009-002 make clear that service as an arbitrator and then a mediator in the same or related case constitutes a non-waivable conflict of interest.

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ELDERCARE MEDIATION

Keeping families together

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I know what’s best for mom. No, you

don’t; she needs to be in a nursing

home.

I am providing all the care, so I should be the

decision maker.

But I help with financial support so I have a say in

the matter.Hey kids, don’t Ihave a say?”

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MEDIATION AS A WAY OF PRESERVING DIGNITY AND AVOIDING PAINOften important decisions affecting aging parents are made under the pressure of emergency situations and stress levels are at their highest and the aging parent is least able to be involved in decision making.Mediation before incompetency encourages:•Consensus building within the family setting•Fostering the preservation of relationships with family and friends•Possibly assuring the retention of maximum independence and autonomous control over basic life decisions by the aging parent•Preservation of dignity between family members and the aging parent

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WHO CAN AND SHOULD PARTICIPATEIN THE MEDIATION?

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WHAT ISSUES CAN BE CONSIDERED AT THE MEDIATION CONFERENCE?

Parental livin

g arrange

ments

Health

and personal care need

s

Driving

ability

Home

care and upkeep

Financial need

s

Nursing

care facilities and ALFs

Trust and

estate

issues

Guardianships and

powers of attorney

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WHAT IS THE ROLE OF THE MEDIATOR IN

THESE ISSUES?A neutral serving as a facilitator of communication and understanding.

Helps the parties reach a consensus on elder care needs

Helps mend hurt feelings between family members laboring under the stress of

caring for an aging parentInvolves the aging parents in

the process in an effort to maintain their dignity and self

determination

Help family members evaluate options and keep the aging

parent’s best interests at the forefront

Provides an opportunity for future meetings

and modifications as needed

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WHAT THE MEDIATOR DOES NOT DO

Make decisions for the familyProvide therapy or counseling (although the process can have a therapeutic affect)Provide legal advice

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ARBITRATION IN NURSING HOME AND

ALF NEGLECT AND ABUSE CASES

A samplingof recent opinions

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AGREEMENTS WITH LIMITATIONS ON DAMAGES HELD VOID DESPITE SEVERABILITY CLAUSE Novosett, v. ARC Villages IL, LLC, ___ So. 3d ___, 41 Fla. L. Weekly D652 (Fla. 5th DCA March 11, 2016)  The appellate court held that an arbitration agreement between a nursing home and a deceased resident was void as against public policy because the agreement placed a cap on noneconomic damages and a prohibition on punitive damages.  The agreement was not salvaged by its severability clause because “the offending clauses [went] to the essence of the agreement.”  The court certified to the Florida Supreme Court the question involved in this case as one of great public importance.

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AGREEMENTS WITH LIMITATIONS ON DAMAGES HELD VOID DESPITE SEVERABILITY CLAUSE (CONT.) Reinshagen v. WRYP ALF, LLC, ___ So. 3d ___, 41 Fla. L. Weekly D1047 (Fla. 5th DCA April 29, 2016):

The appellate court reversed an order compelling arbitration of an action by the personal representative of the deceased resident of an adult living facility for negligence and violation of statutory rights under Chapter 429, Florida Statutes.  The arbitration agreement was void as against public policy because it placed a cap on noneconomic damages and precluded punitive damages.  The agreement was not salvaged by a severability clause because the offending provisions went to the financial heart of the agreement.  The court certified to the Florida Supreme Court as a question of great public importance whether the provisions of the arbitration agreement imposing a cap on noneconomic damages and precluding punitive damages were severable.

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AGREEMENTS SIGNED BY PERSONSLACKING AUTHORITY ARE VOID Blankfeld v. Richmond Health Care, Inc.  2005 WL 1226070  (Fla. 4th DCA 2005) Background: Patient's estate sued nursing home claiming, inter alia, negligent care of patient. Nursing home moved to compel arbitration based on agreement in admission documents. The Circuit Court, Seventeenth Judicial Circuit, Broward County, Miette K. Burnstein, J., granted motion to compel arbitration. Estate appealed. Holdings: The District Court of Appeal, en banc, held that: (1) arbitration clause was void as contrary to public policy, and (2) health care proxy lacked authority to agree to arbitration provision

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AGREEMENTS SIGNED BY PERSONSLACKING AUTHORITY ARE VOID (CONT.) Carrington Place of St. Pete LLC v. Milo 2009 WL 763607 (Fla. 2d DCA 3/25/2009) Where a power of attorney did not unambiguously grant the person who signed the admission documents the authority to enter into an arbitration agreement, the nursing home was not entitled to compel arbitration of the claim against it. The power of attorney specifically granted authority only with regard to the patient’s property interests. The language of the power of attorney is not specifically set out in the opinion. Compare Sovereign Healthcare of Tampa LLC v. Estate of Huerta, 2009 WL 1424011 (Fla. 2d DCA 5/22/2009) (finding language in power of attorney sufficient to grant authority to agree to arbitration; opinion does not set out the language but notes broad language granting authority with respect to hospitalization).

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AGREEMENTS SIGNED BY PERSONSLACKING AUTHORITY ARE VOID (CONT.) Palm Garden of Healthcare Holdings, LLC v. Haydu, ___ So. 3d ___, 42 Fla. L. Weekly D215 (Fla. 5th DCA January 20, 2017)  The trial court denied a motion to compel arbitration of a claim for nursing home neglect.  Conflicting evidence existed whether the individual who signed the admission agreement on behalf of the resident was authorized to do so.  Although the trial court focused on the absence of a power of attorney, rather than the existence of an agency relationship between [the resident] and [the signatory],” the appellate court affirmed because of sufficient record evidence to “support the trial court’s express finding. . . that no binding arbitration agreement exist[ed].”

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ARBITRATOR HAD THE AUTHORITY TO SEVER PROVISIONS IN ARBITRATION AGREEMENT DEEMED AGAINST PUBLIC POLICY Manorcare Health Services v. Stiehl, 2009 WL 2568264 (Fla. 2d DCA 8/21/2009) Where the arbitration agreement contained provisions that limited the plaintiff’s remedies and were contrary to public policy, those provisions could be severed by the arbitrator. The issue of whether they are contrary to public policy may be determined by the arbitrator. Although the agreement contains a nonseverability clause, “language contained within the nonseverability clause anticipates that certain provisions of the Agreement may be deemed invalid and severed, in which case the parties would have the option of either proceeding with arbitration or withdrawing from the Agreement.” The court notes contrary rulings by other courts (next slide).

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ARBITRATOR HAD THE AUTHORITY TO SEVER PROVISIONS IN ARBITRATION AGREEMENT DEEMED AGAINST PUBLIC POLICY (CONT.) Manorcare Health Services v. Stiehl, 2009 WL 2568264 (Fla. 2d DCA 8/21/2009) “We recognize that courts have, on public policy grounds, invalidated arbitration agreements found to defeat the remedial purpose of a statute on which the suit is based. See, e.g., Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999); see also Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1059 (11th Cir.1998). Additionally, courts in this state have specifically found arbitration agreements containing remedial limitations similar to those presented here to render an agreement to arbitrate void and unenforceable. See Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA), review denied, 917 So.2d 195 (Fla.2005); Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333 (Fla. 4th DCA 2005).”

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AMBIGUOUS ARBITRATION AGREEMENTREQUIRED EVIDENTIARY HEARINGTO DETERMINE INTENT OF THE DOCUMENT Santa Rosa Inv., Inc. v. Wilson, No. 1D14–3935, 2015 WL 4925217 (Fla. 1st DCA Aug. 19, 2015)

A nursing home patient had given her brother a durable power of attorney which authorized him, among other things, to pursue actions for “liquidated or liquidated” damages. The brother signed a nursing home arbitration agreement. The nursing home argued that the phrase was obviously a typo and that it should be interpreted to say “liquidated or unliquidated.” The trial court held that the power of attorney clearly authorized the brother to pursue only actions for liquidated damages and refused to compel arbitration.

The First DCA reversed and held that the trial court was required to hold an evidentiary hearing to determine the intent of the ambiguous document. The court should consider parol evidence as well as the document as a whole.

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