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

New gTLD Objections and Dispute Resolution

Because recent new generic top level domain names or gTLDs opened by ICANN will likely lead to violations of existing trademarks, an objection period and dispute resolution process have been implemented. The objection period is provided to protect existing rights and interests. However, objections must be filed directly with selected Dispute Resolution Service Providers or DRSPs, not with ICANN. Grounds for objection include: “String Confusion,” i.e., if confusingly similar to existing TLD or another applied-for GTLD, to be filed with ICDR; “Legal Rights" objection, to filed with World Intellectual Property Organization or WIPO; “Limited Public Interest” objection to be invoked when the applied-for GTLD string goes against generally accepted legal norms of morality and public order under principles of international law, to be filed with the International Center of Expertise of the International Chamber of Commerce; and finally, “Community Rights” objections, e.g., substantial opposition to a GTLD application from a significant portion of the community that the GTLD string is targeting, filed with the International Center of Expertise of the International Chamber of Commerce. Within 30 days of the closing of the objections filing window, ICANN will post Dispute Announcements and notify DRSPs to begin the objection proceedings. For details on the procedure, including fees and response deadlines see - http://newgtlds.icann.org/en/program-status/objection-dispute-resolution and http://newgtlds.icann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf

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

Florida Bar ADR Section Update

Yesterday, I attended the Executive Council meeting of The Florida Bar's ADR Section, first formed in 2010. As outgoing chair of the Orange County Bar Association's ADR Committee, which I petitioned for and founded last summer, I reported on the progress of our local bar group and the programs put on in the inaugural year. Much like the OCBA committee, the big bar's section provides a forum for lawyers interested in alternative dispute resolution and to share common interests, ideas and concepts. The section also provides a source for advocacy involving all forms of alternative dispute resolution and makes formal recommendations to the Supreme Court of Florida Committee on Alternative Dispute Resolution Rules and Policy. Any member in good standing with The Florida Bar interested in the purpose of the section is eligible for membership. Among the proposals for the next bar year, the ADR section plans to amend its by-laws to include inactive members of the Florida Bar who need not be Certified Mediators. A discussion was had about the various newly created residential foreclosure programs in circuits around the state since the disbanding of the state's uniform program. Also discussed, were efforts to bring about a change in CME reporting to the Dispute Resolution Center which would push reporting from two to every three years and in sync with one's Florida Bar reporting date for CLE. Another proposal seeks to make DV credits only part of requirements for Family Law Certified Mediators. The section is exploring hosting its own website, social media pages and a possible listserv. The section will also seek to implement guidelines for amicus involvement in rules cases. A survey will be sent to the over eight hundred members of the new section, asking for feedback. Finally, the section voted to donate $1,000 to The Florida Bar Foundation as a gesture of support for the organization which recently suffered a loss in funding and remains a crucial part of pro bono efforts throughout the state. More information here- http://bit.ly/O7hBSf and http://www.flabarfndn.org/about/

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

Mediation may keep Joint Strike Fighter production going

Lockheed Martin, biggest supplier the Pentagon, and the International Association of Machinists and Aerospace Workers (IAM) agreed to meet federal mediators to settle a strike that began over eight weeks ago over pension and health benefits. Apparently, the Federal Mediation and Conciliation Service (FMCS), an independent federal agency, initiated the move after getting in touch with both sides. Lockheed, under pressure from the Pentagon to reduce its labor and pension costs, hired scabs to maintain production at the plant where it builds F-35 fighter jets. The parties are reportedly hopeful the FMCS can provide the independent perspective that often produces the framework for a resolution and are said to welcome the opportunity to find a resolution to the strike. The National Labor Relations Board (NLRB) last week dismissed three unfair labor practice charges filed by the union against Lockheed. The company appreciated the decision, saying its negotiators had bargained in good faith with the union. See story here - http://reut.rs/NQ0RPa

Chinese iPad? Confucius say: Mediate

Apple's newest iPad is still unavailable in China. Apparently, the Higher People’s Court of Guangzhou began hearing an appeal by Apple following a Chinese lower court's ruling in favor of a Chinese tech company, Proview, that claims ownership of the trademark in China. The court’s foreign affairs office states the court will withhold judgment as long as both parties continue talking. Proview’s lawyer confirms mediation will continue, though a “big gap” remains between the two sides, according to reports. Proview seeks up to $1.5 billion. Revenue from China accounts for almost twenty percent of Apple’s total. In China, mediation is a way of life and litigation is seen as a last resort, embarrassing to honor and the community. Harmony, professed by Confucius to be valuable in governance and social order, is a principle to which Chinese culture adheres. Mediation by a third party has a long history dating back as early three thousand years ago, during the Xi Zhou Dynasty. Perhaps this tradition will help resolve a modern technology dispute involving one of the world's most coveted gadgets. See more information at http://zd.net/LbQLrz and http://bit.ly/KHDsLw UPDATE: 7/2/12 - Apple pays $60 million to settle iPad trademark dispute in Chinese high court-mediated deal See story http://yhoo.it/OTBT1R