COVID-19 Court Continuity

The Supreme Court of Florida just released an Administrative Order creating a Florida Court Continuity Workgroup, consisting of a seventeen member task force meant to find ways for the courts to operate as fully as possible during each stage of the Coronavirus pandemic. Chief Justice Charles Canady selected our very own Ninth Circuit Judge Lisa Munyon to chair this workgroup. I worked alongside her as a General Civil Magistrate, hearing matters in Orange County's Circuit-Civil Division Business Court cases. She is a very effective judge and also leads the statewide Florida Courts Technology Commission that explores traditional and innovative methods of utilizing compatible technology infrastructures to improve case management and efficiencies in the judicial branch. As chair of the new workgroup, she will guide esteemed law professionals from across the state in their mission to examine the current status of court proceedings, propose methods and rule changes, find solutions for legal issues, and in recommending the priority of proceedings to resume. Specific to Alternative Dispute Resolution (ADR), the members will identify and propose solutions for implementation challenges and cost issues associated with the use of remote technology. The workgroup will also consult with other stakeholders and public health experts to determine the best way to implement a plan for a staged return to full court operations. See full order AOSC20-208 here-- https://bit.ly/2Vs0jaM

New Florida Supreme Court ADR Order

The Supreme Court of Florida in monitoring and taking measures to address the effects on court operations of the Coronavirus Disease 2019 (COVID-19) pandemic has issued a new order affecting mediators and arbitrators. As the Supreme Court of Florida is the authority to establish standards and procedures for qualifications, certification, conduct, and training for mediators and arbitrators who are appointed pursuant to Florida Statutes, the court has issued an order during this crisis including: -Granting deadline extensions and abating late fee assessments for mediator certification and mediator renewal. -Allowing certified mediation training programs, approved arbitration and approved parenting coordination training programs to be conducted online. -Allowing certified mediators to complete all of their CME requirements in any format including non-live programs. -Granting deadline extensions for approved mediation trainers and certified mediation training program provider renewal applications. -Providing for remote training means instead of physical attendance through the end of the year for mediators and arbitrators. In addition, the Dispute Resolution Center will accept mediator certification applications and mediator renewal materials electronically. Instructions for electronic submission will be sent to individual mediators at the time of renewal notification. Materials can be faxed to 850-922-9290 or emailed to DRCmail@flcourts.org. See full order here-- https://bit.ly/2Xzi09Z

How to Become a Mediator

Though a forthcoming rules amendment case in The Supreme Court of Florida will likely be decided this year concerning whether certification is required of all mediators in court-filed cases in civil and family courts, certified mediators are currently the only ones subject to ethical rules and other regulations. In order to become certified as a mediator in Florida, there are stringent criteria and training required which is outlined in the link below. I am often asked about this and so the complete information can be found in this convenient publication of the Florida Dispute Resolution Center (DRC). When I became certified in 2001, you had to be a lawyer for five years, just like a judge. Observing mediations is still required and I fulfill my obligation to the profession by providing these opportunities. For each observation required for certification, a trainee must observe an entire session of the type of mediation for which certification is sought, conducted by a certified mediator of the type for which certification is sought. We fill out a form for the observer with the case style, our signature and mediator number. The observation requirement can't be satisfied by any individual who is a party, participant, or representative in the mediation. Candidates for certification may not fulfill the observations before beginning a certified mediation training program. As I'm often asked about whether appellate or pre-suit mediations count, if the case is that which is or would have been the type of mediation for which certification is sought, it may be utilized for observation purposes. Likewise, a federal court mediation conducted by a certified circuit mediator may be utilized to fulfill a circuit mentorship, even though our federal district has its own certification. However, administrative agency mediations conducted under rules and procedures other than that of the state trial courts may not be utilized to fulfill the mentorship requirements. See DRC publication detailing certification process here-- https://bit.ly/2JR4vsi and a link to DRC's annual conference next month in Orlando,"Promoting Mediator Professionalism," here-- https://bit.ly/2tfuJxA

MEAC's Latest on Reporting Settlements

Florida's Mediator Ethics Advisory Council (MEAC) recently considered an inquiry on reporting partial settlements. A mediator writes in that the inability to differentiate between a final and partial agreement on the face of the report as permitted by the mediation procedural rules has created an ethical dilemma in the need to report to the court the actual outcome of the mediation and the status of the case. The practitioner complains it is not only misleading to the court to report only "agreement" or "no agreement," it is also time consuming for the judges, judicial assistants or case managers to read every agreement to determine if it is final or partial agreement as opposed to being able to look at the report. MEAC found that in civil and family law cases only, with the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. To report anything additional without agreement of the parties, or add descriptors or modifiers to "agreement," "no agreement," or "partial agreement," would be providing information to the court, an action which is prohibited by the Mediation Confidentiality and Privilege Act, Sections 44.401-405, Florida Statutes. They did say, however, the rules do not restrict the parties from including in the written agreement their consent to the inclusion of additional language, descriptors, or modifiers in the mediator's report. See full advisory opinion here-- http://bit.ly/2j4YkZr

Long-term Care Arbitration Attacked

This month, a decision by the Supreme Court of Florida and a rule by the federal agency that controls Medicaid and Medicare funding have dealt serious blows to the use of arbitration by long-term care facilities. The Centers for Medicare and Medicaid Services, an agency under Health and Human Services (HHS), essentially bars any nursing home or assisted living facility that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades. The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close. This was the case over a decade ago, when many excess verdicts were recorded in Florida, forcing players out of the state or out of business altogether. Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. Distraught and often desperate for a room, prospective residents do not fully grasp what they are signing. Many times, family members are involved in the admission process. The the Supreme Court of Florida said in a Miami case that a father who was a resident in a nursing home could not be bound by an arbitration requirement that his son had signed without the father’s agreement. However, reportedly, one appeals court refused to throw out an arbitration clause signed by a man who could not read or sign his name, reasoning that “illiteracy alone is not a sufficient basis for the invalidation of an arbitration agreement.” See FL decision in Mendez v. Hampton Court Nursing Center, LLC here-- http://www.floridasupremecourt.org/decisions/2016/sc14-1349.pdf Read more here: http://hrld.us/2dCnHLo and http://nyti.ms/2dCmeVh

Other ADR Rules Rejected by Fla. S. Ct.

Last week, the Supreme Court of Florida ruled on the so-called "Other ADR" case that underwent oral argument this past summer on rule amendments proposed by its own ADR Rules & Policy Committee. This effort was opposed by myself and other members of the ADR Section Executive Council for myriad reasons. The stated purpose-- to establish a set of uniform rules and standards of professional conduct applicable to any dispute resolution process selected by a court for which no rules exist-- was not the issue. Though this effort was supposedly intended to instill and promote public confidence in the use and participation in such processes; that was not the problem either. The ADR Rules & Policy Committee believed the proposed rules and standards of professional conduct would increase the use of ADR, increase party self-determination in the selection of an ADR method or methods, and provide safeguards for parties selecting ADR neutrals performing services for ADR processes for which no other standards of professional conduct exist. Perhaps, but the real defects were in the inconsistencies and lack of clarity in the actual language, which failed to address things like confidentiality and conflicts. The proposal stated the public’s use, understanding, and satisfaction with an Other ADR Process could only be achieved if neutrals embrace the highest ethical principles, but most professional ADR practitioners already have to abide by one or more set of established standards. The ADR Rules & Policy Committee claimed that the time is ripe for revising the procedural rules to address court referral to all types of emerging ADR processes. Discipline was left to the trial judges under the proposed set of rules. If, in the future, rules or standards of professional conduct are promulgated for a process, these rules and standards would then be inapplicable to that new process. In response to the changes, there were several strong criticisms filed, including formal comments by Civil Rules Committee and ADR Section of The Florida Bar, as well as from the Sixth and Eighth judicial circuits and other interested parties. In its per curiam opinion, the Florida Supreme Court declined to adopt the ADR Committee’s proposals: "Given the substantial criticism, alleged deficiencies in the proposals, and other issues raised at oral argument in this matter and in the comments received, we conclude that the time is not yet ripe for rules addressing ADR processes other than those already identified and governed by current court rules." See opinion here-- http://www.floridasupremecourt.org/decisions/2015/sc14-1852.pdf

Fla.11th Jud. Cir. Responds to Mediator Rules Proposals

Florida's Eleventh Judicial Circuit in Miami-Dade County formally commented on proposed amendments to the Florida Rules for Certified and Court-Appointed Mediators. The proposed changes completely revise Mediator Rules relating to disciplinary matters. The stated intent of the proposal is to address inconsistencies, gaps and omissions found in the present version. However, the Miami judicial circuit claims inconsistencies, gaps and omissions require further consideration by the committee before being approved by The Supreme Court of Florida. The Eleventh Judicial Circuit Mediation/Arbitration Unit stated they recognized the importance of clear and concise guidelines and rules to maintain the ethical standards of the profession and to maintain the public confidence in the mediation process. Their comment emphasizes that the rules, as proposed in the amendments, blur the fundamental principles of equity, due process and neutrality. They find certain amendments are vague, arbitrary, and impose an inequitable burden on the mediator who is the subject of disciplinary action. After a thorough review in which they enumerate the new language and procedural changes, they suggest that instead of promoting a more comprehensive uniformity and consistency, the broad nature of the changes perpetuates further inconsistency and general confusion in the proposed disciplinary procedures. The Florida Bar ADR Section is also considering filing formal comments to these rules proposals and has sought an extension for such period to and including August 24, 2015. Accordingly, the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy is allowed to and including September 14, 2015, in which to file its response. See more here-- Case Number: SC15-875 - IN RE: AMENDMENTS TO THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS http://jweb.flcourts.org/pls/docket/ds_docket_search

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 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

Florida Appellate Mediation Procedures Amended

Changes I proposed to the Florida Rules of Appellate Procedure (FRAP) were adopted by the Supreme Court of Florida last week to conform with amendments previously passed and adopted in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument took place last summer and my rule amendment will be effective January 1, 2015. The new language in Florida Rule of Appellate Procedure 9.720 is designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was even a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. See full opinion resulting from FRAP rules committee regular-cycle report here-- http://www.floridasupremecourt.org/decisions/2014/sc14-227.pdf

Oral Argument on Appellate Mediation Rule Changes

Oral argument occurred this morning on my proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. In my experience, attendance at appellate mediation is an important component of whether such cases resolve before briefing and the formalities of the rules can help the parties to anticipate with whom they'll be negotiating and the extent of authority they possess. Many times, trial and appellate counsel appear together, but it is the client that must decide whether to settle at this stage. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there even was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. This is expected to be adopted as part of the regular cycle change. See court documents here-- http://www.floridasupremecourt.org/clerk/comments/2014/index.shtml

Save the Date (5/14) for E-Neutrals in E-Discovery Disputes CLE

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial 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 magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

DRC implements new CME reporting / renewal process

Beginning this month, in compliance with the Supreme Court of Florida's efforts to reduce paper and the Dispute Resolution Center's (DRC) initiative to provide efficiencies to increase productivity and reduce processing times for applications and renewals, DRC will no longer be mailing out renewal applications. Mediators who are due for renewal will receive an email notification three (3) months prior to renewal that it is time to renew along with a link to complete a generic downloadable renewal form. The forms will then need to be completed, notarized and mailed to the DRC with appropriate renewal fees and the CME Reporting Form. Any changes in information (address, email, phones, etc.) should be indicated at this time as well. See complete details at - http://flcourts.org/gen_public/adr/RenewalChanges2013.shtml For additional information contact DRC at 850-921-2910 or at DRCMail@flcourts.org

Judicial Management Council Created

The Supreme Court of Florida on its own motion this year created the Judicial Management Council of Florida, an advisory body designed to assist the court in identifying trends, potential crisis situations, and the means to address them. The so-called JMC will assist the court with forward-looking vision to better fulfill its mission to protect rights and liberties, uphold and interpret the law, and provide for the peaceful resolution of disputes (could this mean alternative dispute resolution?). Council members are to maintain an awareness of current issues, policies and trends related to the judicial branch in order to anticipate and respond to changing priorities. They will be responsible for reviewing the charges of the various court and Florida Bar commissions and committees, as well. JMC members are primarily judges (though there are a few bar and public members) who will be recommending consolidation or revision of commissions and committees, methods for the coordination of the work of those bodies. Applications are due tomorrow from members of The Florida Bar in good standing who are interested in JMC membership. Information on appointment to the council by application is available at www.flcourts.org/gen_public/stratplan/JMC.shtml as well as specific information about the council composition, as well as detailed background information, an application form, and instructions for completing the application. This, along with recent changes to the Rules of Judicial Administration that trump Civil Procedure Rules, seems to be consistent with the high court asserting itself.

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

RMFM Rebooted: Orange County Foreclosure Mediation Program

The so-called RMFM has just become the OCFM or Orange County Foreclosure Mediation Program, administered by the Orange County Bar Association (OCBA). With the originally mandated statewide program abruptly halted by Chief Justice Charles Canady of the Supreme Court of Florida, Ninth Circuit Chief Judge Belvin Perry, Jr. took initiative and by Administrative Order 2012-06, created a new residential mortgage foreclosure program with the OCBA as Program Manager. The stakeholders, including lenders and consumer advocates, committed to new features of the program, such as that the overall cost has been reduced to $500 per case and homeowners pay $250 to participate. There was no fee previously and the hope is to attract serious borrowers who, by having skin in the game, are committed to the process and staying in their homes. Homeowners can first attend free seminars on the process and perceived benefits of participating. There will also be collaboration with the Legal Aid Society providing personal, specific education for borrowers and pre-screening for lenders. Mediators will be drawn exclusively from Orange, Osceola and Seminole counties, but now only receive $150 per session-- half the previous rate. The program mediators will be assigned by computer and there is no minimum number guaranteed. The entire process has been expedited to operate within 100 days. For more information, see: http://ninja9.org/adminorders/orders/2012-06%20-%20residential%20foreclosure%20mediation%20procedures%20orange%20county.pdf and http://www.orangecountybar.org/foreclosure_mediation

E-Service and E-Filing to be mandatory in FL

In a pair of opinions, the Supreme Court of Florida formally adopted proposed amendments to the Florida rules of court to implement mandatory electronic filing procedures for all documents filed in Florida’s courts. The proposed amendments represent a significant and important step toward the goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing or e-filing. Also in furtherance of this goal, in a separate, related case the justices adopted amendments to the rules of court to require e-mail service of pleadings and documents between parties. All 67 county clerks of court have been directed to be prepared to accept e-filings through the statewide e-portal in the civil divisions by July 1, 2012-- but a subsequent filing by the E-Filing Authority indicates several clerks are still experiencing difficulties that would prevent them from accepting electronic filings on that date. Any clerk may submit a request with the Florida Supreme Court to delay the effective date of these rules in any division or court. If such a request is granted, an Administrative Order will be issued and published. However, mandatory e-service under Florida Rule of Judicial Administration 2.516 will begin July 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. 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 with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. Given the delay from oral argument last year to passage of these e-rules, it is possible electronic discovery rule amendments in Florida argued earlier this year may be adopted later than expected. That would be consistent with comments made regarding the need for educating the bench and bar on the proposals to include ESI in existing civil rules. See full opinions here - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf and http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf UPDATE: 6/26/12 - Florida Supreme Court sua sponte amends its opinion to change the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101_Order_06-26-2012.pdf SECOND CORRECTED OPINION: 6/28/12 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

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