Comments on Remote Rule Changes Due 9/30

The Supreme Court of Florida is extending a public comment period for a rules petition submitted by its COVID-19 Workgroup that is designed to promote greater use of tech due to courts, counsel and parties having experienced great efficiency during the pandemic. Changes to Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology, also impact six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure. The amendments focus on ways to permit virtual proceedings under many circumstances, including mediation. The so-called Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 found Court and Bar leaders embraced remote technology to navigate the COVID-19 pandemic. After months of deliberation, the members determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic. The Workgroup noted significant cost and time savings for litigants, lawyers and other stakeholders, while recognizing that remote proceedings are not appropriate in all circumstances. The proposed amendments to Rule 2.530 still require a court official to consider any objections to the use of remote technology and to ultimately approve all use of communication technology. Chief Judge Munyon of Orlando who chairs the effort said remote mediations are here to stay, along with remote hearings and depositions. “Whether a particular hearing is so complex that it needs to be in person, or the evidence is such that it needs to be in person, will be treated on a case-by-case basis,” she said as reported by The Florida Bar News. This morning, the Executive Council of ADR Section of The Florida Bar contemplated filing a comment in support of the continued use of remote mediation attendance which has proved quite effective in the past eighteen months. See more here-- https://bit.ly/2V1hGll and https://bit.ly/3yL2syZ

ADR Rules & Policy Proposals Oral Argument Set June 3rd

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. The Florida Bar ADR Section Executive Council has filed its comments in The Florida Supreme Court and has been granted a brief time for oral argument along with others who commented. Among the comments by the ADR Section is a criticism that there is no provision in the proposed rules which mandates that all communications of all "Other ADR Processes" participants are confidential and privileged, as set forth in the Mediation Confidentiality and Privilege Act (though some proponents say that is for the legislature to handle). There is nothing that provides that decisions, awards, or evaluations are sealed (as are the "awards" in mandatory non-binding arbitration) and may not be considered by the presiding judge in the event that the dispute proceeds to trial. However, apparently the neutral, without agreement of the parties, can impose confidentiality upon the parties. New rule 16.100 (a)(2) states that the neutral upon commencement of an “Other ADR Process” session shall "inform the participants the extent to which communications may be confidential." The concept of an evidentiary "privilege" as to mediation communications, which is not the same as "confidentiality," is nowhere set forth in the proposals, nor do the proposed rules provide for any sanctions which can be imposed upon any party for breaching "confidentiality." In the proposal, “Other ADR Process” is defined as “[A]ny method used to resolve disputes other than litigation for which no other Supreme Court rules or standards of professional conduct exist.” The comment by the section specifically points out that rules 16.010 (b), 12.760 (d)(2), 1.840 (c)(2) incorrectly define a "Neutral" as an "impartial third party who participates in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." The terms "Neutral" and "Impartial" are not one and the same. The term "Impartial" as defined in Rule 11.080 of the Florida Supreme Court Rules for Court-Appointed Arbitrators “means freedom from favoritism or bias in word, action, and appearance." The same definition appears in Rule 10.330 of the Florida Supreme Court Rules for Certified and Court-Appointed mediators. The term "Neutral" means not being predisposed to the resolution or outcome of the ADR process. As such, the proposed rules need to be drafted so as to comport with the existing Court Rules. The ADR Section will divide its presentation with others responding to the presentation at oral argument set for 9:00 am EST June 3, 2015 in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute and be sure to tune in here-- http://www.wfsu.org/gavel2gavel/live.php

ADR Rules & Policy Responds to Comments on ADR Process Rules for which No Other Standards Exist

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. Comments were filed at the end of last year to which Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal has responded, stating the new rules and standards provide basic rules intended to provide some level of guidance to practitioners and protection to consumers for ADR processes for which no guidance or protections currently exist. Current ADR processes which have promulgated rules and standards would not be subject to these rules. According to the committee's response, some of the "Other ADR Processes" are currently authorized in statute (such as Voluntary Trial Resolution) and others are being utilized by courts and parties with no particular statement of authority (such as Early Neutral Evaluation). The ADR Rules and Policy Committee seeks to encourage expanded and innovative use of ADR processes without fear of placing parties in jeopardy. The committee feels there is no way of knowing what Other ADR Process will be selected or created by parties or the court, and so there is no way to suggest specific qualifications, certifications, definitions or an appropriate disciplinary process. Due to the unknown nature of which process may be selected, the committee feels it must be up to the court ordering the process to establish some guidance for the process. With regard to confidentiality, the committee states there are many ADR processes for which confidentiality is neither appropriate nor expected. The committee did agree to modify defining a neutral as follows: an impartial third party who is not predisposed to the resolution or outcome of the process who participates at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute. The committee concludes that the adoption of new rules may lead to experience necessary for novel ADR processes to gain popularity, after which time the courts and/or legislature may have confidence to adopt more specific rules for those utilized successfully over a period of time. It is unclear whether the Supreme Court of Florida will hold oral argument on this proposal. See more in filings for Case No. SC14-1852 at http://www.floridasupremecourt.org

ADR Section comments on ADR Rules & Policy Proposals

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. The Florida Bar ADR Section Executive Council has filed its comments this week in The Florida Supreme Court. Among the comments by the section is a criticism that there is no provision in the proposed rules which mandates that all communications of all "Other ADR Processes" participants are confidential and privileged, as set forth in the Mediation Confidentiality and Privilege Act. There is nothing that provides that decisions, awards, or evaluations are sealed (as are the "awards" in mandatory non-binding arbitration) and may not be considered by the presiding judge in the event that the dispute proceeds to trial. However, apparently the neutral, without agreement of the parties, can impose confidentiality upon the parties. New rule 16.100 (a)(2) states that the neutral upon commencement of an “Other ADR Process” session shall "inform the participants the extent to which communications may be confidential." The concept of an evidentiary "privilege" as to mediation communications, which is not the same as "confidentiality," is nowhere set forth in the proposals, nor do the proposed rules provide for any sanctions which can be imposed upon any party for breaching "confidentiality." In the proposal, “Other ADR Process” is defined as “[A]ny method used to resolve disputes other than litigation for which no other Supreme Court rules or standards of professional conduct exist.” The comment by the section specifically points out that rules 16.010 (b), 12.760 (d)(2), 1.840 (c)(2) incorrectly define a "Neutral" as an "impartial third party who participates in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." The terms "Neutral" and "Impartial" are not one and the same. The term "Impartial" as defined in Rule 11.080 of the Florida Supreme Court Rules for Court-Appointed Arbitrators “means freedom from favoritism or bias in word, action, and appearance." The same definition appears in Rule 10.330 of the Florida Supreme Court Rules for Certified and Court-Appointed mediators. The term "Neutral" means not being predisposed to the resolution or outcome of the ADR process. As such, the proposed rules need to be drafted so as to comport with the existing Court Rules. No word on whether oral argument will be set in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute

ADR Rules and Policy Proposes Amendments, New Rules

In a major development, The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. According to The Florida Bar News, the Court is inviting all interested persons to comment on the proposed amendments, which appear online at-- http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed on or before December 15, 2014, with a certificate of service verifying that a copy has been served on Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida 32114 or palmerw@flcourts.org, and on staff to the Committee, Susan C. Marvin, Dispute Resolution Center, Florida Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399 or marvins@flcourts.org, as well as a separate request for oral argument if commenters wish to participate in oral argument, which may be scheduled on this case. The Committee Chair has until January 5, 2015, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute

FL Supreme Court Limits Senior Judge Mediators

Twenty years ago, the Supreme Court of Florida authorized senior judges to serve as mediators in a new Code of Judicial Conduct, despite concerns about the propriety of a senior judge acting as both a mediator and an assigned senior judge. Last month, following proposed amendments published for comment that would have prohibited dual service, the court again decided to allow senior judges to continue to serve as mediators in light of significant opposition to the proposed prohibition. However, the Court chose to add new limiting provisions, such that Senior judges are now prohibited from serving as a mediator in any case in a judicial circuit where they preside as a judge. Additionally, mediation firms affiliated with judges are required to follow the same prohibitions on advertising and promotion that are imposed on judges. A potential exists that senior judges serving as paid mediators could be seen as exploiting their judicial position or lending the prestige of judicial office to advance the private interests of a judge or a mediation firm with which that judge may associate, or otherwise running afoul of the Code of Conduct. These amendments to the Code of Judicial Conduct, Rules for Certified and Court Appointed Mediators, Florida Rules of Civil Procedure, Rules of Judicial Administration, Rules of Juvenile Procedure, and the Florida Family Law Rules become effective on October 1, 2014 and are seen as additional safeguards to further alleviate the concern that dual service inappropriately creates an advantage in generating mediation business. See full opinion here-- http://www.floridasupremecourt.org/decisions/2014/sc13-1732.pdf

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

E-Everything coming to Florida Courts

Effective September 1, 2012, E-Discovery amendments to the following existing Florida Rules of Civil Procedure become effective: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf and The Florida Bar News story from forthcoming August 1, 2012 issue quoting me-- http://bit.ly/MEAxsu Additionally, mandatory E-service begins September 1st in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Under Florida Rule of Judicial Administration 2.516, service by E-mail is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. When the rules take effect on September 1, attorneys practicing in the criminal, traffic, and juvenile divisions of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013. See E-Service opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf Finally, all 67 county clerks of court have been directed to accept E-filings through the statewide e-portal in the civil divisions and new electronic filing requirements will become effective in the civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on April 1, 2013. As civil ECF is well-established in Orange County, this is nothing new. Next, the new electronic filing requirements the Court adopts will become effective in the criminal, traffic, and juvenile divisions of the trial courts, as well as for appeals to the circuit court in these categories of cases, on October 1, 2013. See E-filing opinion at-- http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf

E-discovery rules in FL at long last!

Effective September 1, 2012 are amendments to seven Florida civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). This is the culmination of a six-year effort initially chaired by me and with the help of members of my subcommittee and the Civil Rules Standing Committee of the Florida Bar. These rules will further allow for the ability for neutrals to play a role in dispute resolution of ESI issues in state court cases. See full opinion and new rules here - http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf and bulletin quoting me "This is the culmination of a rigorous effort to modernize procedure in Florida to include electronically stored information,” attorney Lawrence Kolin, of Winter Park, former chair of the e-discovery rules, told the Association of Certified E-Discovery Specialists® - http://aceds.org/news/florida-ediscovery-rules-take-effect-september-1

Neutrals may ease anxiety over Florida’s new E-discovery rules

This podcast featuring my commentary just in from an interview with the Association of Certified E-Discovery Specialists (ACEDS) Editorial Director, Robert Hilson: On March 7, the Florida Supreme Court heard argument on proposed E-discovery rules for state cases, the first such rules for the fourth largest state. The court has put them on fast track, and could approve them by the end of the year. The rules will affect the state’s diverse legal and corporate community and its 63,000 active attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to e-discovery. Neutral third parties, such as special masters, mediators and referees, may be able to assist in these instances. These so-called “neutrals” can shape discovery plans, allocate costs and suggest and create efficiencies that did not exist. Their services are not limited to grappling with old or new rules, or to discovery disputes. Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar committee that helped craft the e-discovery rules the Supreme Court is considering. In this ACEDS podcast, he tells how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. “I try to focus parties on the merits and try to get them off using e-discovery as a sword or shield,” says Kolin. “Mediation is an avenue that can present parties with significant cost-savings if performed early enough in the litigation.” Podcast introduction: http://aceds.org/aceds-ediscovery-mediation-podcast-with-lawrence-kolin Listen to .mp3 here: http://aceds.org/sites/default/files/ACEDS%20Mediation%20Podcast%20with%20Neutral%20Lawrence%20Kolin.mp3

E-Neutrals and FL ESI rules

I spent the last couple of days at the national annual conference of the Association of Certified E-Discovery Specialists (ACEDS). There were many vendors, attorneys and even court personnel attending. Of particular interest, was a pilot program developed by Clerk of the U.S. District Court for the Western District of Pennsylvania, Robert Barth. That court has identified special masters and E-neutrals as fulfilling the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (ESI) during the litigation process. The parties in those cases reportedly benefit from the appointment of Electronic Discovery Special Masters (EDSMs) in appropriate cases. Any findings of fact or conclusions of law reached by the EDSM will be presented to the court as a report and recommendation, to which the parties have the opportunity to object, prior to a de novo review by the court (see details at - http://www.pawd.uscourts.gov/Pages/ediscovorey.htm). Florida's draft rules do include a case management topic of optional appointment of special magistrates in the event such issues need to be referred. This was discussed during an ACEDS panel I served on with my successor on the Florida Civil Rules Committee, Kevin Johnson. We also spoke on the likelihood of a decision from the Supreme Court of Florida concerning the proposed amendments to the Florida Rules of Civil Procedure and any time frame for implementation. Given the largely friendly reception during oral argument, it appears adoption of the language is imminent, but the forthcoming opinion could delay the effective date of the rules, given the Court's concern for educating the bench and bar.

Supreme Court of Florida Considers E-Discovery Rules

In a development that may lead to the use of more special magistrates and special masters deciding discovery disputes, this morning, the Supreme Court of Florida heard oral argument in case SC11-1542 on the amendments to the Florida Rules of Civil Procedure concerning E-Discovery. The proposed amendments add electronically stored information or ESI into existing rules and are mostly modeled on the federal rule changes implemented by Congress in 2006. Following a multi-year effort by the Civil Procedure Rules Subcommittee on E-Discovery that I formed in January 2006, these rules were presented to the Florida Bar Board of Governors and sent on to the court for comment and adoption. Justice Barbara Pariente, with her iPad prominently displayed on the bench, began to pepper Chair, Kevin Johnson (whom I tapped as my successor upon my terming off the Civil Rules standing committee) shortly after he began. She engaged in congratulating the seemingly unanimous approval by the members of the Bar in the run-up to making these rules official. Justice Pariente continued with questions regarding her experience as a litigator in producing documents in products cases. Mr. Johnson explained that the only difference from the federal rules is the lack of a mandatory meet and confer early in the case. However, there is an available category found in the state case management rules 1.200 and 1.201. Justice Quince was concerned over the format of production of the items requested by a litigant and that those decisions are left to the trial judge. Justice Perry was concerned about the party having the best expert to hide the ball with an inexperienced line judge. Doug Caldwell of the Rumberger firm appeared to applaud the effort, but on behalf of the Florida Defense Lawyers, did not feel the federal rules go far enough. He cited efforts in the federal rules advisory committee to remedy the inefficiencies experienced in that system. Mr. Caldwell echoed Henry Trawick’s comments filed about the burden on the producing party. His anecdote of a ‘mom and pop’ store with an iPhone was met with skepticism from Justice Pariente. Justice Polston pointed out the existing rules allow for trial judges to argue scope in 1.280. Retired Circuit Judge Ralph Artigliere, with whom I’ve taught at OSCA’s Florida Judicial College, commented on preservation and the existing case law for spoliation that developed out of products and malpractice cases. He added that Business Courts can make local rules more specific to manner of production. He also mentioned the change in culture reflecting a burden on lawyers to understand the evidence their clients may have and responsibility to the court, Education of the bench and bar was discussed and Justice Lewis went as far as talking about mandatory court education or bar CLE to be coordinated by the budget-less Civil Rules committee. Not a clue as to the timing of implementation of these rule amendments was given during the thirty-seven minute argument, though I liked Justice Pariente's emphasis on wide agreement of committee and bar to pass rules. Fingers crossed! See complete oral argument at: http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1542