RULES OF JUDICIAL ADMINISTRATION COMMITTEE AGENDA Friday, October 13, 2017 2:00-6:00 Tampa Airport Marriot Tampa, Florida

Conference call number: 1-888-376-5050 Conference code: 7458962145#

New member orientation will begin at 1:00.

I. CALL TO ORDER—Judson L. Cohen, Chair

A. Attendance roster and roll call; introduction of guests

B. Approval of minutes of June 2017; Page 5

II. CHAIR’S REPORT—Judson L. Cohen

A. Regular-Cycle Report

1. SC17-155, In re: Amendments to the Florida Rules of Judicial Administration – 2017 Regular-Cycle Report. Opinion was published. Additional amendments were made by the Court in Rule 2.140 that will be published for comment on November 1. Page 19

B. Out-of-Cycle Report

1. SC16-1062, In re: Amendments to the Florida Rules of Judicial Administration, Florida Rule of Criminal Procedure 3.010, and Florida Rule of Appellate Procedure 9.440. Opinion was published; no rule amendments were adopted by the Court.

2. SC17-882, In re: Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure – Electronic Service. Oral argument is scheduled for this case on December 6, 2017. Page 31

3. SC17-1137, In re: Amendments to the Florida rules of Judicial Administration 2.430, 2.535, 2.560, and 2.565, comments were received by the Ninth Judicial Circuit and the Trial Court Budget Commission. As a result of those comments and the research pending by the Trial Court Budget Commission, and extension for additional information was granted with a new comment deadline of January 2, 2018, and a new response deadline of January 22, 2018. Page 101

4. SC17-1611, In re: Amendments to the Florida Rules of Judicial Administration—New Rule 2.570, was filed by the Board of Governors. The Court released an order seeking the authority of the Board to file an amendment to the Rules of Judicial Administration without the RJAC. The Board and RJAC filed a joint request for an extension of time to coordinate; the new deadline for the Board is November 8, 2107, with a reply by the RJAC due by November 27, 2017.

III. SUBCOMMITTEE REPORTS

A. Subcommittee A—Craig Leen, Chair

1. 15-RJA-14: Rule 2.110. There are two referrals: the first from the Chair relates to whether the name of this section of rules should be changed; the second from Bar Liaison Heather Telfer suggesting the Rules of Judicial Administration should not state the rules take precedence over statutes. Page 114

2. 15-RJA-20/15-RJA-27/15-RJA-29: Rules 2.420 and 2.425. These files have been reassigned to this subcommittee for further work this year.

3. 17-RJA-01: Rule 2.425. Concern raised by Small Claims Rules committee regarding truncated phone numbers in small claims cases. Page 116

4. 17-RJA-12: Rule 2.420. There are three new statutes that appeared to impact Rule 2.420. The subcommittee and full committee approved the incorporation of one new statute modification but did not approve the other two. The pleading is awaiting filing pending the letter to the Court explaining why the

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 2 of 185 two legislations were not incorporated; this filing and letter were delayed by Hurricane Irma. Page 117

B. Subcommittee B—Stephanie Zimmerman, Chair; Page 153

1. 17-RJA-02; 4-panel transcripts. This concern was referred from the Appellate Court Rules Committee.

2. 17-RJA-07; Rule 2.514. This concern was raised by Tom Hall regarding the use of “midnight” to define the filing deadline.

3. 17-RJA-13; Rule 2.265. Concern raised that there is a possible conflict between F.S. 90.202(10) and RJA 2.265.

C. Subcommittee C—Ed Sanchez, Chair

1. SC17-1137, 17-RJA-10; listed above and continuing to be worked on as the commenter’s reports are submitted.

2. 15-RJA-23. This is a concern that was raised by an OSCA attorney concerning service being “perfected” but actually fails. This is being addressed by the subcommittee. Page 157

D. Subcommittee D—Marynelle Hardee, Chair

1. 15-RJA-19; Rule 2.450. This issue was raised by the Chair regarding technology within the courts. Representatives from the Media Law Committee joined this subcommittee as ad hoc members. Page 159

2. 16-RJA-09/16-RJA-11; Rule 2.330 concerns raised by two different individuals: Michael Fink and Paul Poland.

3. 17-RJA-09; Possible conflict between RJA 2.215 and Fla. Prob. R. Proc. 5.330 was raised by probate practitioner Rohan Kelley.

E. Ad Hoc Subcommittee, Electronic Documents—Michael Korn, Chairs; All Complete and Pending Material

15-RJA-12 (2.514 and 2.516); This concern was raised by the Civil Procedure Rules Committee.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 3 of 185 15-RJA-13 (service list origination); this was raised initially as a joint concern with FCTC and RJAC.

15-RJA-26 (all rules regarding electronic service and filing); this was raised initially as a joint concern with FCTC and RJAC.

16-RJA-01 (2.520); Concern was raised by previous Chair.

16-RJA-02 (2.516) [Reassigned from Subcommittee B]; concern raised by Brian Willis.

16-RJA-05 (2.430); concern raised by Stephanie Zimmerman due to potential conflict with Sec. 39.0132, F.S.

16-RJA-08 (2.520, 2.525); concern raised as a result of United Bank v. Estate of Frezee, 41 FLW S1612.

17-RJA-04

H. IOP Subcommittee—Craig Leen, Chair

I. Drafting Subcommittee—Hon. Rick Nielsen, Chair 17-RJA-07; Rule 2.514, edit of "midnight." J. Liaison Subcommittee—Tom Hall, Chair

Committee Liaison Updates

K. Fast-Trach Subcommittee—Sandy Solomon, Chair

IV. FCTC Workgroup; Judge S. Scott Stephens

V. NEW BUSINESS

VI. ANNOUNCEMENTS AND ADJOURNMENT

Next meetings:

1. The Florida Bar Winter Meeting; January 17-20, 2018, DoubleTree by Hilton, Orlando, Florida

2. Annual Florida Bar Convention; June 13-16, 2018, Hilton Orlando Bonnet Creek, Orlando, Florida

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 4 of 185 RULES OF JUDICIAL ADMINISTRATION COMMITTEE Friday, June 23, 2017, Minutes Boca Raton Resort & Club

I. Called to order at 1:05 p.m., by Chair Judge Steven Scott Stephens. After initial comments, Chair invited all members to introduce him or herself around the table. The January 2017 minutes were then approved by acclamation.

II. Judge Stephens shared the Chair’s Report regarding the currently filed cases.

A. Oral arguments were before the Court in June for both SC17-155, Regular-Cycle Report, and SC16-1062, In re: Amendments to the Florida Rules of Judicial Administration, Florida Rule of Criminal Procedure 3.010, and Florida Rule of Appellate Procedure 9.440, regarding Fla. R. Jud. Admin. 2.120, 2.505, 2.515, and 2.516. In SC17-155, the chief assumption that the court wanted RJA to be the coordinating committee was not in alignment with the court’s perception. The one message that was clear was that if you don’t tell us what needs to be done, then the court is not inclined to address the matter. We will await the court’s decision. Going forward we must be careful that there is a strong need for any action that we are to take.

The OA for the Out-of-Cycle Report, SC16-1062, was argued by Amy Borman. Awaiting a decision.

B. Two cases have been filed and are in the publication for comment status: SC17-882, In re: Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure,Draft and the Florida 8-8-17 Rules of Appellate Procedure – Electronic Service, and SC17-1137, In re: Amendments to the Florida Rules of Judicial Administration 2.420, 2.535, 2.560, and 2.565. SC17-882 relates to Electronic Service (5-day) Amendment and has been published in July 1 Bar News.

III. SUBCOMMITTEE REPORTS

A. 1. Subcommittee A Chair Craig Leen explained there is a proposal to change the name of the rule set to Rules of General Application and Judicial Administration (15-RJA-14). This would include both Rules of

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 5 of 185 Judicial Administration, which the committee cannot alter, and Rules of General Application, which the committee can alter. There is an additional proposal to divide the rules into the two sub-parts. The subcommittee approved changing the rule section titles by a 6-1 vote. The subcommittee wanted the full committee reaction before moving forward. Judge Stephens accepted a motion to approve in concept; seconded by David Jones. Paul Regensdorf raised the concern that there needs to be a coordinated effort between the committee and the court. The rules should be easily identifiable for practitioners to know what rules generally apply to all proceedings. Judge Menendez spoke in favor, but Murray Silverstein discussed that more needs to be done. It has been misperceived that the committee is used in a rule coordinating function; this is to apply only to rules of general application. Murray moved to amend the rule title and text in respect. Chair Stephens explained the motion is out of order. Jennifer Mansfield agreed the name should be changed, but requested an evaluation of how it could be broken down for practitioners. Don Christopher agreed and suggested amendment. Murray called the question and there was no opposition. The motion to approve in concept—Subcommittee recommendation to change the name of the judicial administration rules and consider refining scope definition—was approved. Chair Stephens instructed the subcommittee to address the concerns raised. There was also a suggestion to add Tom Hall to the subcommittee working on this matter.

Subcommittee Chair Leen also addressed a concern raised by Heather Telfer, the staff liaison for other rules of court committees. She suggested that Rule 2.140 should not state that the rules take precedence over statutes. Craig explained the concern, and a working group was created, to be reported in the fall meeting. 2. SubcommitteeDraft Chair Leen8-8-17 then explained the concern raised by Ashley Myers regarding appearances (15-RJA-24). The concern is that in some jurisdiction, only an attorney of record can view pleadings on the docket. The subcommittee continues to address this issue. Murray Silverstein raised a concern regarding access to court records and suggested this be a recommendation to the Florida Courts Technology Commission. Rob Eschenfelder moved that the concern be shared with the subcommittee to be reviewed. The subcommittee discussed that this may not be a problem the committee can solve.

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 6 of 185 3. Subcommittee Chair Leen explained the concern raised that it could be difficult for pro se parties to set hearings when there is no uniform proceeding for doing so (17-RJA-03). The subcommittee would like to determine if the full committee would like this addressed as a rule of General Application. This would affect other committees, and we would need to respond to the Florida Commission on Access to Civil Justice’s Services Options Committee with what action we will take. Craig moved to do the survey and proceed with the proposal; Paul Regensdorf seconded the motion. Amy Borman, speaking for the 15th circuit, expressed concern that this is not an RJAC issue; each judge establishes a different procedure for accomplishing the setting of hearings. The subcommittee discussed differences in how counties set hearings, and it was suggested the Florida Commission on Access complete the research. Craig clarified that the motion is for the subcommittee to go back and work on a rule of general application that requires each court to provide an explanation of the process to set a hearing. The subcommittee moved to take action; that motion was opposed by a vote of 11-25. Subcommittee Chair will draft a letter to the Access to Justice Committee regarding the Committee’s decision.

B. 1. Subcommittee B Chair Corrine Hodak shared her report, explaining that Rule 2.511 is a foundational rule that outlines the E-Filing Portal requirements. She walked through the suggested rule: (a) defines the Portal and establishes the requirement the portal be used by default; (b) addresses the credentials for access to the portal, including that the filing of the document is the act of the person who holds the credentials; and (c) discusses the authority of the portal. The subcommittee unanimously recommended the rule. Judge Stephens explained that, if approved, the rule will go to the drafting subcommittee, then will be ready for filing with the court. Amy Borman suggested subdivision (b)(2) should be written in the positive, amendingDraft the language to state8-8-17 “access is permitted only when…”. Craig Leen moved to accept Amy’s suggestion, but Judge Stephens recommended against the amendment and explained the drafting committee has the authority to make the changes. The motion to amend was withdrawn, and motion to approve the rule with the knowledge it will be submitted to the drafting subcommittee was approved with a vote of 31-1, this was second reading approval.

2. The Appellate Court Rules Committee referred to a concern to ban 4-pane transcripts (17-RJA-02), proposing an amendment to Rule 9.220(c)(4) to ban filing of condensed transcripts in appellate courts. The

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 7 of 185 Criminal Procedure Rules Committee approved the amendment concept, particularly in death cases. The Civil Procedure Rules Committee expressed no objection to the drafting of such a rule. The subcommittee has committed to drafting a rule. Murray Silverstein questioned if this would be in the appellate rules or rules of judicial administration, if it was a general application. Appellate does not want us to ban condensed transcripts in appellate court, but are asking this be done in trial court. Michael Korn agreed this is valuable because the citation to specific lines is confusing when reading it in court.

3. Subcommittee Chair Hodak shared a report on Rule 2.514 regarding the definition of “last day.” Tom Hall raised the concern regarding the use of “midnight” to define the filing deadline. The proposal suggested amending subdivision (a)(1)(A) to read “11:59:59.” Subcommittee B made the motion to approve the amendment, seconded by Judson Cohen. Michael Korn stated it needs to be time-zone defined if the words “before midnight” are used to ensure filers have a clear understanding of exactly the time deadline. And, if all filing time is keyed to the “portal time, which is Eastern Time Zone, then that should me codified. Craig Leen suggested the time should be 3:00 a.m., so it is midnight in all time zones. The suggestion was raised to change the language to “before midnight,” but Cory explained this was previously discussed and it was determined too vague. Rob Eschenfelder called the question, and the motion was passed with a vote of 30-4, this was second reading approval. Don Christopher suggested changing the IOPs to go to drafting for final review after second vote. Craig welcomed the referral for the drafting committee.

C. Subcommittee C Chair Ashley Myers reported that the Florida Supreme Court raised a concern (file 16-RJA-12) submitted by a commenter for further reviewDraft whether there is an8-8-17 ability for a non-English speaker to make a knowing waiver. This matter was addressed by the joint work group comprised of RJAC Subcommittee C Members and several members of the Court Interpreter Certification Board. This Court assignment was completed, voted on by both the Committee and the Board, and the Board of Governors, and was filed timely Friday, June 16, 2017. Now case SC17-1137.

Subcommittee discussed another concern (file 15-RJA-23) that was raised by an OSCA attorney concerning service being “perfected” but actually fails. It is being addressed by the subcommittee.

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 8 of 185 D. 1. Subcommittee D Chair Marynelle Hardee shared her report and history of Rule 2.450 for second vote. She explained there is support by the Media Law Committee for the proposed changes and motioned to approve. Rob Eschenfelder seconded. Amy Borman proposed amendment of title to include photo coverage: Use of Audio, Visual, and Electronic. Amy and Marynelle agreed to defer the matter to the drafting committee. Don Christopher stated it would be better to state the “judge or presiding officer” to be clear of who the rule applies to. It was again agreed to defer the matter to the drafting committee. The rule was approved in second vote 34-0.

2. Marynelle shared the history and research of Rule 2.330. Concerns were raised by Michael Fink and Paul Poland and asked that a revision to require a judge to grant recusal if a spouse is a witness to a case be made. The subcommittee recommended no rule amendment; this does not appear to be a state-wide concern that needs to be addressed. Tom Hall explained that the court has actually rejected letters of circuit wide blocks.

E. Ad Hoc Subcommittee on Electronic Documents

Subcommittee Co-Chair Amy Borman began by complimenting the subcommittee’s dedication. The Florida Courts Technology Commission made a referral regarding standards that should be in rules, and stated some rules sounded like standards. Amy shared the history of action and process of the subcommittee. It was proposed that all of the references to “permanently recorded” be changed to “permanently imaged.” Rule 2.515 was modeled after Fed. Rule 11 and a signature indicator was put in. Rule 2.516 was renamed to “Service” and service matters that used to be in the “Documents” rule were added. Subdivision (b) was divided into two parts: electronic service via portal and electronicDraft service by e-8-8-17mail. Subdivision (c)(3) clarified service does not have to be done in the same manner to all the parties. Former subdivision (a) was moved to new subdivision (d)(3). Subdivision (e) addresses a courtesy copy to the judge. Co-Chair Murray Silverstein shared some additional explanation and suggested creating a form for uniformity. Rule 2.520 was modified to remove subdivision (a), and it was moved to the filing rule. Subdivision (b) states documents should be submitted as a readable PDF, rather than a scanned, unreadable PDF. Documents submitted in paper are not to be stapled or bound. Subdivision (d) addresses exhibits in paper. Subdivision (e) establishes that documents do not need to be verified. Rule 2.525 is now titled “Filing” and defines the official court record. Subdivision

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 9 of 185 (b) addresses filing through portal or other facility. Subdivision (c) addresses paper filing and how the clerk is to notify the filer of error.

Amy explained Rule 2.345 is ready for first vote. Ashley Myers pointed out that Rule 2.430 is the subject of a petition that was filed last week, and suggested a joint committee. Paul Regensdorf questioned what the anticipated time frame for filing was. David Jones questioned whether these would be in one package. Judge Stephens stated the process is not yet defined. Amy motioned that Rule 2.345 be approved on first reading. Michael Korn, seconded and Judge Stephens opened for discussion. A concern was raised regarding the phrase “document unequivocally verify.” Judge Stephens explained that we rely on the clerk’s office for the officially signed signatures and shared an explanation of this authorization rule. Michael Schmid shared concern regarding a signature not being in signature block: if it is not in the block, is it valid? Murray asked to approve all of the rules in concept and suggested everyone provide comments. Rob Eschenfelder suggested that if it was not ready for a vote, to send it back. Paul Regensdorf suggested deleting subdivision (1) as it adds only a concern and does not indicate anything. Judson Cohen called the question, and it was passed with a vote of 24-8 in first reading.

Chair Amy Borman moved for Rule 2.430 to be sent to ad hoc subcommittee as articulated in the agenda. After discussion, that motion was withdrawn and the matter will be in the discretion of the incoming chair. Don Christopher suggested that the definition in subdivision (a)(1) of court record match the definition that will be used in Rule 2.420, which is currently under review.

Rule 2.515 was not ready for first reading, with two proposals. Judge Stephens withdrewDraft his second draft. 8-8-17Amy moved the proposed amendment before the committee for first reading; this was seconded by Rob Eschenfelder. There was discussion regarding responsibilities of signors in the signature block. It was clarified that if they are named, they may not be a signor; but if they sign, they must have their name listed. Paul Regensdorf stated there can only be one filer. There can be signers who have a “/s/.” Then, there is a third category of people who are not signors. Paul called the question and the motion passed with a vote of 24-5 on first reading.

Amy moved to approve Rule 2.516 on first reading. Paul Regensdorf expressed concern regarding the wording of “service” versus “process.” It

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 10 of 185 was explained that there is conflict in the DCAs regarding service of certain documents. Michael Debski stated that subdivision (c)(1) may not cover corporations or LLCs who are represented by principals in small claims cases. Tom Hall discussed subdivision (e), suggesting that “when permitted” be changed to “when required” for consistency. The concern that judges do not publish their e-mails, making service difficult, was raised as well. Paul explained that this has been corrected via the Portal, though their e-mail addresses remain invisible to filers. It was also suggested the method of service be identified within the certificate of service to solve the question of response time for those served by e-mail versus U.S. Mail.

Stephanie Zimmerman explained that if subdivision (d) stands, it does not explain who the court services. Courts currently shift the burden to the Department of Children and Families to serve the parties with the judgments. If those judgments must be served by paper, there will be a big cost shift to the Department of Children and Families. It was pointed out that Rule 2.516 materials end at subdivision (e), and asked if (f)-(h), where the service indicators are, were being removed. The majority agreed the certificate of service portions should be retained. Craig Leen moved to amend to add a subdivision on certificates of services; Ed Sanchez seconded. It was suggested to change “attorney” to “filer” for service. The motion was passed unanimously.

Amy Borman moved Rule 2.520 as proposed for first reading; Rob Eschenfelder seconded. Stephanie Zimmerman stated that Amy’s explanation of the rule contemplated that exhibits would not be subject to PDF requirements to be searchable or OCR’d if not created by the filer, but subdivision (d) only contemplates that the exhibits will not be subject to subdivision (a). She recommended that (d) also state that exhibits not be subject to the requirementsDraft of (b). Amy8-8-17 suggested adding a subdivision (d)(3) to explain they should file pursuant to FCTC guidelines. It was recommended she review this. Amy Borman called the question and the vote passed.

Amy Borman explained that Rule 5.525 will require judges to begin e- filing by January 1, 2020. Subdivision (e) explains the filed date and time. Subdivision (f) addressed filing failures. It will not be rejected, but it will not be docketed. Amy moved for first reading; Robert Eschenfelder seconded. Michael Debski commented that (b)(2) and (c)(1)(A) need to incorporate small claims courts. A concern about “incorrect case style” giving clerks the

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 11 of 185 discretion to reject documents was clarified: it is not the concern of clerks to have a discretion to reject, but it is necessary to give them the ability. Craig Leen commented that (d)(2) should also include appeal time. It was suggested that the time be tied to when “the appeal becomes final.” An issue was raised regarding how long a document should be kept in a death penalty case. Amy explained that the minimum is one year, but it behooves the filer to keep it longer. Amy also suggested modifying (f)(1)(C) to read “multi- page documents that are improperly filed” to solve the confusion regarding the requirement that documents be split if a certain size. This concern will be addressed in review. The question was called and the motion was approved in first vote 34-0.

F. Ad Hoc Subcommittee, Local Rules and Administrative Orders

Tom Hall presented 15-RJA-15/15-RJA-17/15-RJA-18. He explained the process for local rule was abandoned in favor of administrative orders. The draft was sent to many circuit and DCA judges. Some responses came back from trial courts concerned it would cut into the admin order process. Tom explained they have provided for an exception for temporary local rules and moved for first vote. Michael Sasso seconded.

Amy Borman objected to Rule 2.120(c). She explained the first sentence was unnecessary because an admin order can discuss the items in the list as background. She suggested removing the first sentence and using only subdivisions (1), (2), and (3). Craig Leen supported proposed rule. Judge Stephens asked how admin orders are challenged and stated that the Supreme Court may not see a concern. Tom Hall explained it is a difficult process to challenge an admin order because the opponent will be the chief judge, and this would create a mechanism for challenging the order. Judge Ruiz strongly opposedDraft this proposed 8-8-17 rule on behalf of his chief judge. He stated the 11th Circuit judges are against this rule because it hinders innovation. The greater concern is that the limitation of admin orders to require local rules may lead to the limitation of local rules for legislation. This would result in taking away local authority completely. This actually appears to be merely a call for cleaning up of courts’ admin orders; the 11th Circuit is prepared to do so.

Michael Sasso commented that the purpose of this proposal was initiated to merely explain the distinction between admin orders and local rules. He does not believe these rules limit particular districts. He explained

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 12 of 185 that there is a court that has an administrative order that addresses mandatory discovery, which is a matter better suited to local rule. He explained this does not do anything to limit a circuit’s ability to control their circuits.

David Jones explained that the proposed amendment’s definition is merely to clarify what is currently in the definitions. Amy Borman made a friendly amendment to remove subdivision (c). Michael Schmid asked whether there was a grandfather clause for already existing admin orders. Craig Leen stated that it would be better to have a robust set of local rules than an ad hoc set of admin orders so there is certainty of what should be applied and they are easy to find. He further stated that the Bar should be involved in the process, but the Florida Supreme Court should not be involved in the local rule process. Rob Eschenfelder moved to table the concern until the whole history and full report can be shared. Judge Stephens shared history that the question came from him. Judson Cohen seconded the motion to table. Tom Hall was concerned a motion to table would kill the proposal; Judson responded that it would send the proposal back to the subcommittee and return with more clarification. Jennifer Mansfield commented that the admin order process is overused and that the rule making process is a better process; if there is a chance to avoid controversy, then do that. Tom Hall expressed concern there are local rules in the guise of admin orders. Judge Stephens explained there must be clear examples of what needs to be fixed for a rule to succeed. Tom Hall withdrew his motion to approve in favor of the Chair sending it back to the subcommittee for review.

G. Ad Hoc Subcommittee, Rules 2.420 (Public Access to and Protection of Judicial Branch Records) and 2.425 (Minimization of the Filing of Sensitive Information)Draft. Chair Don Christopher8-8-17 gave the report on the progress and explained that work in this matter is continuing.

H. Internal Operating Procedures Subcommittee Chair Craig Leen expressed there were no amendments presented or report necessary at this time.

I. Drafting Subcommittee

Judge Rick Nielson shared Rule 2.330 for final review/vote, regarding the proposed amendment submitted by the Judicial Administration and

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 13 of 185 Evaluation Committee and also incorporate the Committee’s desire to change subdivision (g) from 10 to 20 days. Michael Korn moved to approve, seconded by Rob Eschenfelder.

Paul Regensdorf raised concern that “party” may not be an attorney. He gave the example that if a party knows the fact a year ago, but the case is filed a month ago, when does the 20 days start? He suggested having the time start prior to the suit even being filed, or the attorney is hired. Amy Borman commented that the rule was discussed many times and it was out of order to discover such detail now at final vote. Judge Stephens stated he was concerned about extending the time to 20 days. Judge Ruiz explained the history of the January meeting. Rob Eschenfelder responded to Paul’s comment by pointing to the language that the facts must constitute “the grounds for the motion,” and not knowing the identity of the judge means there are no grounds constituted. Therefore, there is no concern regarding timing.

Rob Mason stated that, from a juvenile prospective, time should not be extended, but should be extended for civil litigation concerns. David Jones discussed the juvenile concern and raised the reasons addressed in the subcommittee. He explained this is the final vote after two votes. Michael Korn called the question, and the amendment was approved by a vote of 26- 4.

J. Liaison Subcommittee

Alvan Balent raised questions regarding the need to modernize Rule 2.530 for current use. Concern was shared with other committees and it was agreed that Rule 2.530 should be in the individual rule sets because it is handled separatelyDraft in other courts. It8-8-17 was recommended that the Chair coordinate with other committee chairs to keep the rule in the discretion of the judge, not for single/focused rule.

David Jones clarified the committee is defining communication equipment and retaining the other language in Rule 2.530. He moved to adopt the changes proposed. Craig Leen called the question, and the vote was approved unanimously 32-0.

K. Fast-Track Subcommittee

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 14 of 185 Clerk raised concern on Rule 2.420, regarding victim information within documents. Chair Judge S. Scott Stephens explained they have received legislative language and will take action.

IV. FCTC Workgroup This conversation was included within the Ad Hoc Subcommittee report.

V. NEW BUSINESS No new business was raised.

VI. ANNOUNCEMENTS AND ADJOURNMENT Tokens of appreciation were presented to Rob Eschenfelder for his leadership in the Board of Governors’ Specific Committee on Parental Leave in Court Cases, and to Judge S. Scott Stephens for his leadership within this committee.

The meeting was adjourned at 5:46 p.m.

Draft 8-8-17

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 15 of 185 ( '( June 5, 2017

RULES OF JUDICIAL ADMINISTRATION COMMITTEE (CM235)

Honorable Steven Scott Stephens

Mr. Judson Lee Cohen Ms. Marynelle Hardee ,))~ Mr. Stanford R. Solomon

Mr. Stephen Herre Echsner

Ms. Andrea Armas

Ms. Amy Singer Borman

Mr. Donald EdwaTd ChristopheT

Mr. Woody Robert Clermont

Honorable Marva Louise Crenshaw

Mr. Michael Thiel Debski

Mr. Robert Michael EschenfeldeT

Mr. Jose Rafael Florez

Honorable Josephine Gagliardi

Mr. Jonathan Adam Galler

Ms. Cynthia M. Guerra

Mr. Thomas D. Hall

Ms. Corinne Cotton Hodak

Mr. Justin J. Horan

Ms. Debra Amie Jenks ..~

Mr. David Arthur Jones

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 16 of 185 June 5, 2017 Rules of Judicial Administration Committee (CM235)

Mr. Michael Jeffrey Korn

Mr. Craig Edward Leen

Ms. Jennifer Anne Mansfield

Mr. Robert William Mason

Mr. James Andrew McKee

Mr. Manuel Menendez, Jr.

Ms. Ashley J. McCorvey Myers

Honorable Richard Allen Nielsen

Mr. Todd Stewart Payne

Honorable Stephanie Williams Ray I Mr. Paul R. Regensdorf

Ms. Doricia Miller Rivas

Mr. John Daniel Roman

Mr. David Anthony Rowland

Honorable Rodolfo Armando Ruiz II

Mr. Eduardo I. Sanchez

Mr. Michael Pasquale Sasso

Mr. Michael William Schmid

Ms. Caroline Black Sikorske

Mr. Munay Bruce Silverstein

Ms. Sarah Rebecca Sullivan

Mr. William C. Vose

Honorable Samantha Lee Ward October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 17 of 185 ( June 5, 2017 Rules of Judicial Administration Committee (CM235)

Mr. Stephen R. Williams

JV!:r. Jeffrey H. Willis

Ms. Stephanie Christina Zimmerman

4~.f.111..: 0 -:I',,.;; Yi l /

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 18 of 185 Supreme Court of Florida Office of the Clerk 500 South Duval Street Tallahassee, Florida 32399-1927

JOHN A. TOMASINO PHONE NUMBER: (850) 488-0125 CLERK www.floridasupremecourt.org MARK CLAYTON CHIEF DEPUTY CLERK KRISTINA SAMUELS September 13, 2017 STAFF ATTORNEY

The Florida Bar News Editor The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300

In Re: Amendments to the Florida Rules of Judicial Administration - 2017 Regular-Cycle Report, Case No. SC17-155

Dear Editor:

I have provided you with a copy of the proposed Rules in the above case. Please publish said Rules in the October 15, 2017, Bar News. Please publish a statement that the Court has placed the proposed Rules on the Internet at location: http://jweb.flcourts.org/pls/docket/ds_docket_search.

Any comments should be filed with the Supreme Court on or before November 6, 2017. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) 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). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17­

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 19 of 185 27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

Thank you for your cooperation in this matter.

Most cordially,

John A. Tomasino

JAT/sh Enclosure cc: Judson Lee Cohen, Chair, Rules of Judicial Administration Committee Honorable Ricky L. Polston, Supreme Court Justice Liaison Honorable Michael J. Higer, President, The Florida Bar Honorable Michelle R. Suskauer, President-elect, The Florida Bar John F. Harkness, Jr., Executive Director, The Florida Bar Lori Holcomb, Division Director Ethics and Consumer Protection Honorable Steven Scott Stephens, Past Chair, Rules of Judicial Administration Committee Amy Singer Borman, Past Chair, Rules of Judicial Administration Committee Stanford R. Solomon, Subcommittee Chair, Rules of Judicial Administration Committee Robert Joseph Merlin, Chair, Family Law Rules Committee Honorable Laurel Lee, Past Chair, Family Law Rules Committee Caroline Black Sikorske, Member, Family Law Rules Committee Landis Vernon Curry, III, Chair, Appellate Court Rules Committee Thomas D. Hall, Vice Chair, Appellate Court Rules Committee Kristin Ann Norse, Past Chair, Appellate Court Rules Committee Michael Thiel Debski, Chair, Small Claims Rules Committee Alison Verges Walters, Past Chair, Small Claims Rules Committee Jonathan Adam Galler, Chair, Florida Probate Rules Committee Michael Travis Hayes, Past Co-Chair, Florida Probate Rules Committee Jon Scuderi, Past Co-Chair, Florida Probate Rules Committee

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 20 of 185 Honorable Jon Berkley Morgan, Chair, Criminal Procedure Rules Committee H. Scott Fingerhut, Past Chair, Criminal Procedure Rules Committee Meredith Charbula, Past Chair, Criminal Procedure Rules Committee Kara Ann Fenlon, Chair, Juvenile Court Rules Committee Ward Lee Metzger, Past Chair, Juvenile Court Rules Committee Joel M. Silvershein, Past Chair, Criminal Law Section of The Florida Bar Krys Godwin, Bar Staff Liaison Heather Telfer, Bar Staff Liaison Mikalla Davis, Bar Staff Liaison Chief Judges of the District Courts of Appeal Clerks of the District Courts of Appeal Chief Judges of the Judicial Circuits Clerks of the Judicial Circuits Deborah J. Meyer, Central Staff Director

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 21 of 185 The Florida Supreme Court recently amended Florida Rule of Judicial Administration 2.140 (Amending Rules of Court). See In re Amendments to the Florida Rules of Judicial Administration — 2017 Regular-Cycle Report, No. SC17-155 (Fla. Sept. 7, 2017). The Court previously published the amendments proposed by The Florida Bar’s Rules of Judicial Administration Committee (RJA Committee). The Court adopted most of the published amendments, modified several of them, and adopted additional amendments on the its own motion to further clarify and delineate the current procedures for amending court rules.

Because the amendments adopted on the Court’s own motion have not been published for comment, the Court invites all interested persons to comment only on those amendments, which are reproduced in full below and indicted in italicized type, as well as online at http://www.floridasupremecourt.org/decisions/opinions.shtml. The RJA Committee is welcome to comment on those amendments. Comments on amendments that were previously published will not be entertained, unless included in a timely motion for rehearing or clarification. All comments must be filed with the Court on or before November 6, 2017, with a certificate of service verifying that a copy has been served on the Chair of the RJA Committee, Judson Lee Cohen, 14125 N.W. 80th Avenue, Suite 400, Miami Lakes, Florida 33016­ 2350, [email protected], and on the Bar Staff Liaison to the Committee, Krys Godwin, 651 E. Jefferson Street, Tallahassee, Florida 32399­ 2300, [email protected], as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November 27, 2017, 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 via the Florida Courts E-Filing Portal (Portal) 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). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 22 of 185

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION — 2017 REGULAR-CYCLE REPORT, CASE NO. SC17-155

Amendments made on the Court’s own motion and are appropriate for comment are shown in italicized type.

RULE 2.140. AMENDING RULES OF COURT

(a) [All changes previously published]

(b) Schedule for Regular-Cycle Rules Proposals.

(1) [No Change]

(2) [All changes previously published] No later than June 15 of the year prior to each reporting year or such other date as the board of governors of The Florida Bar may set, each reporting committee shall submit all proposed rule changes to the board of governors with the committee’s final numerical voting record on each proposal. Contemporaneously with reporting proposed rule changes to the board of governors, each committee report shall be furnished to the Speaker of the Florida House of Representatives, the President of the Florida Senate, and the chairs of the House and Senate committees as designated by the Speaker and the President, and published on the Internet website of The Florida Bar, and in the Florida Bar Journal or The Florida Bar NewsNews. Any person desiring to comment upon proposed rule changes shall submit written comments to the appropriate committee chair(s) no later than August 1 of the year prior to each reporting year. Each committee shall consider any comments submitted and thereafter report to the board of governors, no later than October 1531 of the year prior to each reporting year, any revisions to the proposed rule changes. Contemporaneously with reporting any revisions to the board of governors, each committee’s revised proposed rule changes shall be furnished to the Speaker of the Florida House of Representatives, the President of the Florida Senate, and the chairs of the House and Senate committees as designated by the Speaker and the President, and published on the Internet website of The Florida Bar, and in the Florida Bar Journal orThe Florida Bar NewsNews. Any person desiring to comment thereafter shall submit written comments to the supreme court in accordance with subdivision (b)(6).

(3) [No Change]

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 23 of 185 (4) No later than February 1 of each reporting year, each committee and the executive director of The Florida Bar shall file a report of its proposed rule changes with the supreme court. Each committee may amend its recommendations to coincide with the recommendations of the board of governors or may decline to do so or may amend its recommendations in another manner. Any such amendments shall also be reported to the supreme court. The report and proposed rule changes must conform to the Guidelines for Rules Submissions approved by administrative order and posted on the Internet websites of the supreme court and The Florida Bar. Consistent with the requirements that are fully set forth in the Guidelines, the report shall include:

(A) a list of the proposed changes, together with a detailed explanation of each proposal that includes a narrative description of how each amendment changes the language of the rule and a thorough discussion of the reason for each change;

(B) the final numerical voting record of the proposals in the committee;

(C) the name and address of the proponent of each change, if other than a member of the rules committee;

(D) a report of the action taken by the committee on comments submitted in accordance with subdivision (b)(2);

(E) a report of the action and voting record of the board of governors;

(F) any dissenting views of the committee and, if available, of the board; and

(G) an appendix containing all comments submitted to the committee, all relevant background documents, the proposed amendments in legislative format, and a two-column chart setting forth the proposed changes in legislative format in the firstleft column and a brief summary of the explanation of each change given in the report in the secondright column.

The report and the proposed rule changes shall be filed with the supreme court, in legislative format, both on paper and in an electronic format approved by the supreme court.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 24 of 185 (5) If oral argument is deemed necessary, the supreme court shall establish a date duringin the month of May or June of each reporting year for oral argument on the proposals. Notice of the hearingoral argument on the proposals and a copy of the proposals shall be furnished to the affected committee chair(s) and vice chair(s), the executive director and staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, and any person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically. If the committee modifies its recommendations after considering comments submitted in accordance with subdivision (b)(2), tThe recommendations or a resume of them shall be published on the Internet websites of the supreme court and The Florida Bar and in the Florida Bar Journal or The Florida Bar NewsNews before the hearingoral argument or consideration of the proposals without oral argument. Notice of the hearingoral argument, if scheduled, shall also be published on the Internet websites of the supreme court and The Florida Bar and in the Florida Bar Journal or Florida Bar News.

(6) Before the date of oral argumentWithin the time allowed for comments set by the supreme court, any person may file comments concerning the proposals. All comments and other submissions by interested persons shall be filed with the clerk of the supreme court and served on the chair(s) of the appropriate rules committee, the Bar staff liaison, and on the proponent of the rule change if other than a member of the rules committee. The chair(s) of the rules committee and the executive director of The Florida Bar shall file a response to all comments within the time period set by the court. All comments and other submissions regarding the rule change proposals, in addition to being filed with the supreme court in paper format, shall also be filed in an approved electronic format approved bywith the supreme court. Prior to the date of oral argument and aAs soon as practicable after the date of filing, the clerk of the supreme court shall publish on the Internet websites of the supreme court and The Florida Bar all comments and the responses of the chair(s) of the rules committee that have been filed concerning the rule change proposals. All requests or submissions by a rules committee made in connection with a pending rule change proposal shall be filed with the clerk of the supreme court and thereafter published by the clerk of the supreme court on the Internet websites of the supreme court and The Florida Bar.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 25 of 185 (7) Orders of the supreme court on saidOpinions adopting the proposals should be adoptedissued in sufficient time for the rule changes to take effect on January 1 of the year following the reporting year. The supreme court may permit motions for rehearing to be filed on behalf of any person who filed a comment, The Florida Bar, any bar association, and the affected committee.

(c) [All changes previously published]

(d) Emergency Amendments by Court. The supreme court, with or without notice, may change court rules at any time if an emergency exists that does not permit reference to the appropriate committee of The Florida Bar for recommendations. The rule changes must conform to the Guidelines for Rules Submissions approved by administrative order and posted on the websites of the supreme court and The Florida Bar. If a change is made without reference to the committee, tThe change may become effective immediately or at a future time. In either event, the court shall give notice of and fix a date for further consideration of the change. Any person may file comments concerning the change, seeking its abrogation or a delay in the effective date, in accordance with the procedures set forth in subdivision (b)(6) of this rule. The court may allow oral argument in support of such comments by The Florida Bar, by its sections and committees, and by other bar associations. Notice of the hearingoral argument, if scheduled, on the change and a copy of the change shall be furnished to the affected committee chair(s) and vice chair(s), the executive director and staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, and any person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically. TheNotice of the change shall be published on the Internet websites of the supreme court and The Florida Bar, and in the Florida Bar Journal orThe Florida Bar NewsNews either before the hearingor after the change is adopted. Notice of the hearingoral argument, if scheduled, shall also be published on the Internet websites of the supreme court and The Florida Bar, and in the Florida Bar Journal or Florida Bar News.

(e) Out-of-Cycle Committee Proposals.

(1) Emergency Recommendations by CommitteeProposals and Proposals in Response to Legislative Changes. If, in the opinion of a committee, a

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 26 of 185 proposal is of an emergency nature or a rule amendment is necessary due to changes in legislation, and the board of governors concurs, proposals may be made at any time to the supreme court. The report and proposed rule changes may be filed without prior publication for comment and must conform to the Guidelines for Rules Submissions approved by administrative order and posted on the Internet websites of the supreme court and The Florida Bar. The rules committees’ fast- track procedures shall be used to address legislative changes to ensure that any resulting proposed rule amendments are filed with and can be adopted by the court before or soon after the effective date of the legislation. If the court agrees that an emergency exists or a rule change is necessary due to a legislative change, the court may publish the rule amendment for comment after adopting it or may set a time for oral argument andor for consideration of the proposal without oral argument. Notice of the hearingoral argument on the proposals, if scheduled before or after adoption, and a copy of the proposals shall be furnished to the affected committee chair(s) and vice chair(s), the executive director and the staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, and any person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically. Prior to or after their adoption, Tthe recommendations or a resume of them shall be published on the Internet websites of the supreme court and The Florida Bar, and in the Florida Bar Journal orThe Florida Bar NewsNews before the hearing. Any person may file comments concerning the changes, in accordance with the procedures set forth in subdivision (b)(6). Notice of the hearingoral argument, if scheduled, shall also be published on the Internet websites of the supreme court and The Florida Bar, and in the Florida Bar Journal or Florida Bar News.

(2) Non-Emergency Out-of-Cycle Proposals. If, in the opinion of a committee, a proposal is not of an emergency nature, but is sufficiently necessary to the administration of justice that it should not wait until the next regular-cycle submission, and the board of governors concurs, proposals may be made out-of­ cycle at any time to the supreme court. The report and proposed rule changes must conform to the Guidelines for Rules Submissions approved by administrative order and posted on the websites of the supreme court and The Florida Bar. Such out-of­ cycle submissions must be published in The Florida Bar News and posted on the website of The Florida Bar for comment, and such comment must be reviewed and addressed by the committee prior to the out-of-cycle rule submission to the board

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 27 of 185 of governors to recommend acceptance, rejection, or amendment. If the supreme court agrees that a proposal should be addressed before the next regular-cycle report, the supreme court may set a time for oral argument or for consideration of the proposal without oral argument. Notice of the oral argument on the proposals, if scheduled, and a copy of the proposals shall be furnished to the affected committee chair(s) and vice chair(s), the executive director and the staff liaison of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, the person who initially proposed the matter to the committee, and any person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically. The recommendations or a resume of them shall be published on the websites of the supreme court and The Florida Bar, and in The Florida Bar News for comment before the oral argument or consideration of the proposals without oral argument. Any person may file comments concerning the proposals, in accordance with the procedures set forth in subdivision (b)(6). Notice of the oral argument, if scheduled, shall also be published on the website of the supreme court.

(f) Request by Court. The supreme court may direct special consideration of a proposal at times other than those specified in this rule and may require a committee to report its recommendation with the recommendations of the board of governors. All requests or submissions by a rules committee made in connection with a request under this subdivision shall be filed with or submitted to the clerk of the supreme court as provided in this subdivision. The report and proposed rule changes must conform to the Guidelines for Rules Submissions approved by administrative order and posted on the Internet websites of the supreme court and The Florida Bar. The supreme court may set oral argument on the report at any time. Notice of the hearing on the proposals and a copy of the proposals shall be furnished to the affected committee chair and vice chair, the executive director of The Florida Bar, all members of the Judicial Management Council, the clerk and chief judge of each district court of appeal, the clerk and chief judge of each judicial circuit, the Speaker of the Florida House of Representatives, the President of the Florida Senate, the chairs of the House and Senate committees as designated by the Speaker and the President, and any person who has asked in writing filed with the clerk of the supreme court for a copy of the notice. The clerk may provide the notice electronically. The recommendations or a resume of them shall be published on the Internet websites of the supreme court

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 28 of 185 and The Florida Bar, and in the Florida Bar Journal or Florida Bar News before the hearing. Notice of the hearing shall also be published on the Internet websites of the supreme court and The Florida Bar, and in the Florida Bar Journal or Florida Bar News.

(1) Recommended Rule Changes. A rule change recommended in response to a request under this subdivision shall be included in the rules committee’s next regular-cycle report filed under subdivision (b), unless the court directs or the committee determines and the board of governors agrees that the rule change should be submitted out of cycle. If the committee submits a recommended change out of cycle, the procedures for out-of-cycle rule proposals under subdivision (e) shall apply, except the report shall state that it is filed in response to a request by the court under this subdivision.

(2) No Action Recommendations. If the court refers a matter to a rules committee for consideration only and does not direct the committee to propose a rule change, and after considering the matter referred the committee determines that no rule change is warranted, the committee shall submit a “no action report” to the court explaining its recommendation that no rule change is needed. A no action recommendation should not be included in a report proposing rule changes filed under any other subdivision of this rule. After the court considers the recommendation, the clerk shall notify the rules committee chair(s) and the executive director and the staff liaison of The Florida Bar whether any further action is required of the committee.

(g) Amendments to the Rules of Judicial Administration.

(1) Amendments Without Referral to Rules Committee. Changes to the Rules of Judicial Administration contained in Part II, State Court Administration, of these rules, and rules 2.310, and 2.320, contained in Part III, Judicial Officers, generally will be considered and adopted by the supreme court without reference to or proposal from the Rules of Judicial Administration Committee. The supreme court may amend rules under this subdivision at any time, with or without notice. If a change is made without notice, the court shall fix a date for future consideration of the change and the change shall be published on the Internet websites of the supreme court and The Florida Bar, and in the Florida Bar Journal orThe Florida Bar NewsNews. Any person may file comments concerning the change, in accordance with the procedures set forth in subdivision (b)(6) of this rule. The court may hear oral argument on the change. Notice of the

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 29 of 185 hearingoral argument on the change, if scheduled, and a copy of the change shall be provided in accordance with subdivision (d) of this rule.

(2) [All changes previously published]

(h) [No Change]

Committee Notes

[No Change]

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 30 of 185 Aderant

June 21, 2017

VIA FEDERAL EXPRESS Florida Supreme Court Office of the Clerk 500 South Duval Street TaIIahassee, Florida 32399-1927

Re: Comment re proposed amendment to RJA 2.514 (CASE NO. SC17-882) Dear Sir or Madam:

We are writing to formally comment on the proposed amendment to RJA 2.514, out for comment to August 1, 2017 (Case No. SC17-882). As proposed, RJA 2.514(a)(1)(A) provides for periods stated in days or a longer unit to "begin counting from the next day that is not a Saturday, Sunday, or legal holiday." According to the Joint Out-of-Cycle Report of the Civil Procedure Rules Committee, The Rules of Judicial Administration Committee, The Criminal Procedure Rules Committee, And the Appellate Court Rules Committee, the stated reason.for this change is "to alleviate concerns that late-night e-service prior to a weekend or legal holiday could be o pdo e to strategically shorten response times." z c- 8 We agree that the proposed change addresses this concern. However, because it will extend all o c.3 §deadlines more than 6 days in length, not just deadlines following "late-night e-service," it is also an N junn cessarily drastic measure, inconsistent with the method of computation set forth in the FRCP and z z u erous courts throughout the country. There are easier and less confusing ways to accomplish the a e goal.

Proposed amendment affects ALL deadlines, not just those generated after e-service of a document. Because the proposed amendment is not limited to calculations computed after e-service, the revised rule would affect all calculations, including those calculated after the filing or entry of a document by the Court. Why should a party be given extra time when a document is entered by the Court during regular business hours? This does not appear to be the desired result behind the proposal, the intended purpose of which is to alleviate gamesmanship of late-night e-service of documents. However, this is what will occur if the proposed amendment is adopted as written. For instance, under RCP 1.530(g), "A motion to alter or amend the judgment shall be served not later than 15 days after entry of the judgment...." Under the proposed RJA 2.514, the time to file the motion would not begin until the next day that is not a weekend or holiday, regardless of the fact that the Court has entered the judgment and presumably is not doing so after business hours. As another example, consider the deadline to file a notice of appeal pursuant to RAP 9.110(b). A party has 30 days after the rendition of the order by the Court in which to file a notice of appeal. If the Court renders the order on May 26th, 2017, the 30-day deadline to appeal does not start to run until May 30, 2017, as that is the "next day that is not a Saturday, Sunday or legal holiday," effectively giving the parties 3 extra days to appeal. Under proposed RJA 2.514, parties in some cases would receive more time to file the notice of appeal than parties in other cases based randomly on the day the order was rendered, which again most likely is not occurring after business hours or on weekends or holidays. Because proposed RJA 2.514(a)(1)(A) does not limit its application to calculations computed following e-service or to some other specific circumstance, it makes no difference what event triggers the deadline at issue or whether the deadline being triggered is a filing deadline or a service deadline. Proposed RJA 2.514(a)

200 Corporate Pointe Suite 400 Culver City, CA 90230 (800) 444 0020 www.aderant.com

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 31 of 185 Florida Supreme Court June 21, 2017 Page 2

says plainly and broadly that the calculation applies "in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time... [w]hen the period is stated in days or a longer unit of time." Moreover, for the same reason, deadlines after all types of service are affected, not just those generated after e-service. Under the proposed amendment, if interrogatories are served by personal delivery on July 3, 2017 at 9 am, the calculation of the response time does not start running until July 5, 2017, essentially giving the responding party 2 extra days to answer or object. In years when July 4th falls on a Friday, moreover, the responding party will have an extra 3 days. Personal service is complete upon the delivery of the document to the party. Thus, the time to respond after personal service should not be extended. However, the proposed amendment to RJA 2.514 does just that. Proposed amendment may drastically extend time periods. By beginning the calculation of deadlines on the next day not a weekend or hojiday, the Court effectively is giving the parties served a minimum of 2 extra days to act when they are served on a Friday or on the day before a holiday. However, in many cases, the party will receive much more than 2 days' extra time. For example, RCP 1.140(a)(1) provides that a defendant must serve an answer to a complaint within 20 days after service of a summons and complaint. If the complaint was served on Thursday, May 18, 2017, the answer would be due on Wednesday, June 7, 2017. However, if the complaint was served on Friday, May, 29, 2017, the answer would not be due until Monday, June 12, 2017 - giving the defendant 5 extra days to answer.

The inconsistency in the application of the deadline is problematic, especially in multi-defendant cases where different defendants may be served on different dates. The problem is only further exacerbated in instances where there are any intervening holidays at play, including Monday holidays and successive- day holidays like Thanksgiving and the Day After Thanksgiving. Proposed amendment is inconsistent with FRCP and courts throughout the nation. With the FRCP's recent removal of extra time following service by electronic means (December 1, 2016), and the prevalence of ECF systems in courts across the country, numerous courts have faced the same issue regarding late-night e-service. Moreover, in the federal courts, where there is no rule to count periods of time in court days, the issue would seem to be even more of a concern. None of these courts, however, opted to adopt a calculation similar to that proposed in RJA 2.514(a). In the FRCP itself, they did not change the method of calculating the initial period of time at all. See FRCP 6(a)(1). In many courts, however, both state and federal, they eliminated the strategic advantage of late-night e-service by adopting rules that say service after a certain time is deemed served on the next court day. For example: Texas USDC, Eastern District CV 5(d): "Parties may serve copies of pleadings and other case related documents to other parties by facsimile or electronic means in lieu of service and notice by mail. Such service is deemed complete upon sending. Service after 5:00 p.m. Central Time shall be deemed served on the following day." Texas RCP 21a(b)(2): "Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shaII be deemed served on the following day." San Francisco Superior Court Local Rule 2.11(Q) "Documents E-Served by the Close of Business on court days are deemed to have been served on that day. Otherwise, they are deemed served the next court day." Delaware USDC Administrative Procedures Governing Filing and Service by Electronic Means, F: "All electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 32 of 185 Florida Supreme Court June 21, 2017 Page 3

discovery responses) must be completed by 6:00 p.m. Eastern Time, in order to be considered timely filed and served that day." We note further that before Florida's Ninth Judicial Circuit Court transitioned to the state ECF portal in 2013, that jurisdiction had its own local ECF rules with language similar to the above rules. It said, "If the document is filed after 5:00 P.M. EST or during a weekend or a Court holiday, the response time is calculated as the number of days provided by Rule plus two (2) days." This language is easily adapted to accomplish the goal of the current proposed amendment to RJA 2.514, without the undesirable side- effects. Alternative. As proposed, RJA 2.514(a) unilaterally changes the computation of time of all deadlines, regardless of the action that triggers the deadline, and unnecessarily and inconsistently gives parties extra time to act. We urge the Court to consider a less drastic and less extraordinary amendment to the RJA, that is limited to remedying the issue of late-night e-service and consistent with methods other courts across the nation have adopted. This could be done very simply by leaving the language of RJA 2.514(a)(1) as is and adding a sentence to RJA 2.516(b)(1) as follows:

(1) Service by Electronic Mail ("e-mail"). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. Documents served by e-mail after 5:00 p.m. Eastern Time are deemed served the next court day. A filer of an electronic document has complied with this subdivision if the Florida Courts efiling Portal ("Portal") or other authorized electronic filing system with a supreme court approved electronic service system ("e- Service system") served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk ("e-Service"). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1)(A). [Emphasis added.] Thank you for your time and consideration. Sincerely,

Victoria Katz Rules Attorney [email protected] CERTIFICATE OF SERVICE I certify that a copy of the foregoing was furnished by e-mail, on June 21, 2017, to:

Kristin A. Norse Roger James Haughey, 11 Chair Appellate Court Rules Committee Chair Civil Procedure Rules Committee P.O. Box 3396 401 E. Jackson Street, Suite 2225 Tampa, Florida 33601-3396 Tampa, Florida 33602-5213 [email protected] [email protected]

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 33 of 185 Florida Supreme Court June 21, 2017 Page 4

H. Scott Fingerhut Hon. Steven Scott Stephens Chair Criminal Procedure Rules Committee Chair Rules of Judicial Administration Committee 500 S. Dixie Highway, Suite 301 Edgecomb Courthouse, Suite 552 Coral Gables, Florida 33146-2768 800 E.Twiggs Street [email protected] Tampa, FL 33602-5330 [email protected] Mikalla Andies Davis Krys Godwin Staff Liaison Staff Liaison The Florida Bar The Florida Bar 651 E. Jefferson Street 651 E. Jefferson Street TaIIahassee, Florida 32399-2300 Tallahassee, Florida 32399-2300 [email protected] [email protected] Heather Savage Telfer Staff Liaison The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 [email protected]

Victoria Katz Aderant 200 Corporate Pointe, Suite 400 Culver City, CA 90230

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 34 of 185 Godwin, Krys

From: Victoria Katz Sent: Thursday, May 18, 2017 5:00 PM To: Norse, Kristin; Haughey II, Roger; Fingerhut, H; Stephens, Steven; Godwin, Krys; Telfer, Heather Subject: Proposed amendment to RJA 2.514(a)

Good afternoon,

Although we understand that the comment period regarding the proposed amendment to RJA 2.514(a) currently is closed, because of the importance of this potential change and the far-reaching effect it will have on deadlines in the Florida state trial and appellate courts, we write now to bring the Court’s attention to substantial issues with the proposed amendment. We respectfully request and hope the Court will take our comments under consideration and not adopt the amendment to RJA 2.514(a) as proposed, despite the timing of our submission.

As proposed, RJA 2.514(a)(1)(A) provides for periods stated in days or a longer unit to “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.” According to the Joint Out-of-Cycle Report of the Civil Procedure Rules Committee, The Rules of Judicial Administration Committee, The Criminal Procedure Rules Committee, And the Appellate Court Rules Committee, the stated reason for this change is “to alleviate concerns that late-night e-service prior to a weekend or legal holiday could be done to strategically shorten response times.”

We agree that the proposed change addresses this concern. However, because it will extend all deadlines more than 6 days in length, not just deadlines following “late-night e-service,” it is also an unnecessarily drastic measure, inconsistent with the method of computation set forth in the FRCP and numerous courts throughout the country. There are easier and less confusing ways to accomplish the same goal.

Proposed amendment affects ALL deadlines, not just those generated after e-service of a document.

Because the proposed amendment is not limited to calculations computed after e-service, the revised rule would affect all calculations, including those calculated after the filing or entry of a document by the Court. Why should a party be given extra time when a document is entered by the Court during regular business hours? This does not appear to be the desired result behind the proposal, the intended purpose of which is to alleviate gamesmanship of late-night e-service of documents. However, this is what will occur if the proposed amendment is adopted as written.

For instance, under RCP 1.530(g), “A motion to alter or amend the judgment shall be served not later than 15 days after entry of the judgment….” Under the proposed RJA 2.514, the time to file the motion would not begin until the next day that is not a weekend or holiday, regardless of the fact that the Court has entered the judgment and presumably is not doing so after business hours.

As another example, consider the deadline to file a notice of appeal pursuant to RAP 9.110(b). A party has 30 days after the rendition of the order by the Court in which to file a notice of appeal. If the Court renders the order on May 26th, 2017, the 30-day deadline to appeal does not start to run until May 30, 2017, as that is the “next day that is not a Saturday, Sunday or legal holiday,” effectively giving the parties 3 extra days to appeal.

In addition, deadlines after all types of service are affected, not just those generated after e-service. Under the proposed amendment, if interrogatories are served by personal delivery on July 3, 2017 at 9 am, the calculation of the response time does not start running until July 5, 2017, essentially giving the responding party 2 extra days to answer or object. In years when July 4th falls on a Friday, moreover, the responding party will have an extra 3 days. Personal service is complete upon the delivery of the document to the party. Thus, the time to respond after personal service should not be extended. However, the proposed amendment to RJA 2.514 does just that.

Proposed amendment may drastically extend time periods.

By beginning the calculation of deadlines on the next day not a weekend or holiday, the Court effectively is giving the parties served a minimum of 2 extra days to act when they are served on a Friday or on the day before a holiday. However, in many cases, the party will receive much more than 2 days’ extra time. For example, RCP 1.140(a)(1) provides that a defendant must serve an answer to a complaint within 20 days after service of a summons and complaint. If the complaint was served on Thursday, May 18, 2017, the answer would be due on Wednesday, June 7, 1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 35 of 185 2017. However, if the complaint was served on Friday, May, 29, 2017, the answer would not be due until Monday, June 12, 2017 – giving the defendant 5 extra days to answer.

The inconsistency in the application of the deadline is problematic, especially in multi-defendant cases where different defendants may be served on different dates. The problem is only further exacerbated in instances where there are any intervening holidays at play, including Monday holidays and successive-day holidays like Thanksgiving and the Day After Thanksgiving.

Proposed amendment is inconsistent with FRCP and courts throughout the nation.

With the FRCP’s recent removal of extra time following service by electronic means (December 1, 2016), and the prevalence of ECF systems in courts across the country, numerous courts have faced the same issue regarding late-night e-service. Moreover, in the federal courts, where there is no rule to count periods of time in court days, the issue would seem to be even more of a concern. None of these courts, however, opted to adopt a calculation similar to that proposed in RJA 2.514(a). In the FRCP itself, they did not change the method of calculating the initial period of time at all. See FRCP 6(a)(1). In many courts, however, both state and federal, they eliminated the strategic advantage of late-night e- service by adopting rules that say service after a certain time is deemed served on the next court day. For example:

Texas USDC, Eastern District CV 5(d): “Parties may serve copies of pleadings and other case related documents to other parties by facsimile or electronic means in lieu of service and notice by mail. Such service is deemed complete upon sending. Service after 5:00 p.m. Central Time shall be deemed served on the following day.”

Texas RCP 21a(b)(2): “Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served on the following day.”

San Francisco Superior Court Local Rule 2.11(Q) “Documents E-Served by the Close of Business on court days are deemed to have been served on that day. Otherwise, they are deemed served the next court day.”

Delaware USDC Administrative Procedures Governing Filing and Service by Electronic Means, F: “All electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 6:00 p.m. Eastern Time, in order to be considered timely filed and served that day.”

We note further that before Florida’s Ninth Judicial Circuit Court transitioned to the state ECF portal in 2013, that jurisdiction had its own local ECF rules with language similar to the above rules. It said, “If the document is filed after 5:00 P.M. EST or during a weekend or a Court holiday, the response time is calculated as the number of days provided by Rule plus two (2) days.“ This language is easily adapted to accomplish the goal of the current proposed amendment to RJA 2.514, without the undesirable side-effects.

Alternative.

As proposed, RJA 2.514(a) unilaterally changes the computation of time of all deadlines, regardless of the action that triggers the deadline, and unnecessarily and inconsistently gives parties extra time to act. We urge the Court to consider a less drastic and less extraordinary amendment to the RJA, that is limited to remedying the issue of late-night e-service and consistent with methods other courts across the nation have adopted. This could be done very simply by leaving the language of RJA 2.514(a)(1) as is and adding a sentence to RJA 2.516(b)(1) as follows:

(1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. Documents served by e-mail after 5:00 p.m. Eastern Time are deemed served the next court day. A filer of an electronic document has complied with this subdivision if the Florida Courts efiling Portal (“Portal”) or other authorized electronic filing system with a supreme court approved electronic service system (“e-Service system”) served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk (“e-Service”). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1)(A). [Emphasis added.]

Thank you for your time and consideration.

Sincerely,

Victoria Katz

2 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 36 of 185 Rules Attorney

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3 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 37 of 185 Filing # 60865941 E-Filed 08/24/2017 02:46:44 PM

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA RULES OFAPPELLATE PROCEDURE, CASE NO: 17-882 THE FLORIDA RULES OF CIVIL PROCEDURE, THE FLORIDA RULES OF CRIMINAL PROCEDURE, AND THE FLORIDA RULES OF JUDICIAL ADMINSTRATION

SUPPLEMENTAL RESPONSE TO COMMENT FROM THE CIVIL PROCEDURE RULES COMMITTEE Honorable Rodolfo Armando Ruiz, II, Chair of the Civil Procedure Rules Committee (“CivPRC”) and John F. Harkness, Jr., Executive Director of The Florida Bar, on behalf of the CivPRC, file this Supplemental Response to the Comment by Certain Members of the Original Joint Email Service Committee docketed on August 4, 2017 (“Comment”). After consideration of the Comment, the CivPRC submits this formal response to supplement the CivPRC response docketed on August 8, 2017, which did not include any reference to the Comment. The Comment was filed for the sole purpose of opposing the proposed rule amendment to Florida Rule of Judicial Administration 2.514(a)(1)(A) that would change time computation for all time deadlines. The CivPRC agrees that the proposed amendment is objectionable and should not be implemented. The CivPRC will not address the well recited history of e-mail service set forth in the Comment, the perceived pressure by The Florida Bar Board of Governors (“BOG”) to create a “remedy,” or the individual experiences of the Joint Committee Members who signed the Comment. The crux of this Supplemental Response is to present the following perspectives:

1. reliance on the Florida Court E-filing (“Portal”) data to establish the non-existence of “gamesmanship” regarding service of documents is misplaced; 2. the Comment fails to acknowledge a paradigm shift in how the deletion of the 5-day response time may affect practitioners; 3. although the pervasiveness of any such problem is unknown, the CivPRC is aware of anecdotal reports of practitioners attempting to “game” the system to reduce response time; 4. the CivPRC response docketed on August 8, 2017, containing alternate suggested amendments was submitted solely in response to Ms. Katz’

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 38 of 185 Comment and to note that the Rules of Judicial Administration Committee (“RJAC”) “remedy” is overly broad; and 5. regardless of whether the Court deems it necessary to implement a “remedy,” the CivPRC supports the deletion of the 5-day response time.

Reliance on the Portal Data By its nature, it is difficult to understand and convert the raw Portal data (Appendix to the Comment) to meaningful information that can be applied to the issues before the Court. To begin with, using the provided Portal data to understand what is being filed at any particular time is daunting, at best, and is not particularly easy to read. Some Portal filings require a response from opposing counsel and some do not. The Portal data provides information about the number of filings, but it is not possible to determine if a particular filing requires a response from opposing counsel. Accordingly, it is not possible to determine if any particular filing would fall within the ambit of being affected by the deletion of the 5-day response time. For instance, it is possible that most filings occurring after 5:00 p.m. require a response, but that information is not known. It is reasonably believed that nearly all filings are handled by staff working for attorneys, and therefore, it is not surprising that there is a sharp drop off of filings occurring after 5:00 p.m., regardless of the day of the week. Moreover, in anticipation of the weekend, one might also logically expect that less filings would occur after 5:00 p.m. on a Friday than on other days of the week. Although the Comment implies otherwise, it is simply not possible to conclude “gamesmanship” is not occurring, based on the theory that one would notice a discernable number of increased filings occurring after 5:00 p.m. on Friday, as opposed to other weekdays. The problem with trying to use the Portal data to rule in or rule out existing pervasive “gamesmanship” is that no data is available regarding the use of facsimile service. Under the current rules, the most effective method to reduce an opposing attorney’s response time is to both file the document and fax the document to opposing counsel, thereby eliminating the 5-day response time by rule. See, Fla. R. Jud. Admin. 2.516(b)(2)(E).1 Accordingly, one can do more to

1 Service by hand delivery also eliminates the extra 5-day response time. Fla. R. Jud. Admin. 2516(b)(2)(a)–(c).

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 39 of 185 reduce response time and actual notice by faxing and filing a document before 5:00 p.m. on Friday. Taking into consideration the above factors, the current Portal data does not provide any meaningful insight regarding the current existence or pervasiveness of alleged “gamesmanship.” Paradigm Shift The Comment fails to address the fact that the deletion of the 5-day response time will result in a subtle paradigm shift regarding how service and actual notice is viewed by the practitioner. Pursuant to Florida Rule of Judicial Administration 2.516(b)(1)(D), service is complete on the date a document is sent by e-mail or is filed. Except for very few exceptions, time of day for e-service has not been an issue. Even when a document is both filed and sent by facsimile to eliminate the 5- day response time by rule, one could not depend on sending a fax to opposing counsel after 5:00 p.m. because fax machines in many offices are turned off after 5:00 p.m. Therefore, even if the 5-day response time was eliminated by both faxing and filing a document, opposing counsel still had the benefit of actual notice and receipt before 5:00 p.m. and the full response time provided under the rules. This concept would change if the 5-day response time is deleted for e-service, because it will then be possible to serve opposing counsel with a document after 5:00 p.m., and thereby reduce the possibility of opposing counsel having actual notice to include the full amount of response time set forth in the rules. Suddenly, the time of service will become an issue, and the time of day of a filing occurring after business hours may present a practical problem for the practitioner. The unfortunate result of this paradigm shift is that by deleting the 5-day response time for e-service, this rule amendment may actually encourage attorneys to file after business hours, when they had no reason to do so in the past. Thus, the Comment fails to consider the possibility that the deletion of the 5-day response time may cause or encourage attorneys to file documents after business hours, particularly before holiday weekends. Admittedly, the loss of actual notice and response time would only amount to 1 day for filings after 5:00 p.m. on Monday through Thursday, 3 days for filings after 5:00 p.m. on Friday, and as much as 4 days for filings after 5:00 p.m. on the day before a holiday weekend. The resulting issue is whether this consequence requires a remedy. Anecdotal Reports The CivPRC has received reports over the years regarding perceived abuses by attorneys attempting to inappropriately shorten the time for responding to

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 40 of 185 documents. However, the pervasiveness of the perceived problem is unknown and it is not possible to state whether it is or is not a current significant problem. As stated above, any attempts under the current rules to shorten time would have likely occurred via facsimile, and the apparent response by practitioners to that issue has involved turning off facsimile machines at the end of the business day so faxes cannot be received after 5:00 p.m. CivPRC Response Docketed August 8, 2017 The CivPRC filed its initial response on August 8, 2017, solely for the purpose of making three key points: 1. The Comment filed by Ms. Katz contained a workable alternative to the RJAC proposed amendment to Florida Rule of Judicial Administration 2.514(a)(1)(A), but required revised drafting; 2. the proposed amendment to Florida Rule of Judicial Administration 2.514(a)(1)(A) is overly broad in scope; and 3. the specific issue stated by the RJAC—filings after 5:00 p.m. on a Friday or before a holiday—could be addressed by the alternative solution proposed by the CivPRC. Any perceived complexity to the CivPRC proposal results solely from the attempt to remedy the issue as presented by the RJAC: “late night e-service prior to a weekend or legal holiday.” Summary The paradigm shift resulting from the deletion of the 5-day response time may encourage late night filings. Ms. Katz’s proposal and the CivPRC proposal are both superior to the RJAC’s overly broad proposed amendment to Florida Rule of Judicial Administration 2.514(a)(1)(A). The CivPRC stands by its prior response, and supports the elimination of the 5-day response time for e-service, regardless of whether the Court concludes that a “remedy” needs to be implemented. Respectfully submitted on August 24, 2017 Miami, FL 33130-1715 305/349-7082 /s/ Honorable Rodolfo Armando Ruiz [email protected] Honorable Rodolfo Armando Ruiz, II Florida Bar No. 21980 Chair Civil Procedure Rules Committee Miami Dade County Courthouse /s/ John F. Harkness, Jr. 73 West Flagler Street, Suite 416 John F. Harkness, Jr. Executive Director

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 41 of 185 The Florida Bar [email protected] 651 East Jefferson Street Florida Bar No. 123390 Tallahassee, FL 32399-2300 850/561-5600 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was furnished by e-mail, via the Florida Courts E-filing Portal, on August 24, 2017, to:

Landis Vernon Curry, III, Chair Michael Thiel Debski, Chair Appellate Court Rules Committee Small Claims Rules Committee Hill Ward Henderson Debski & Associates, P.A. 101 E. Kennedy Blvd. Ste 3700 P.O. Box 47718 Tampa, FL 33602-5195 Jacksonville, FL 32247-7718 813/221-3900 904/425-0901 [email protected] [email protected] Florida Bar No. 469246 Florida Bar No. 84840

Hon. Jon Berkley Morgan, Chair Judson Lee Cohen, Chair Criminal Procedure Rules Committee Rules of Judicial Administration State of Florida Committee 2 Courthouse Sq. Rm. 6420 Weinstein & Cohen, P.A. Kissimmee, FL 34741-5487 14125 NW 80th Ave Ste 400 407/742-2516 Miami Lakes, FL 33016-2350 [email protected] 305/374-1011 Florida Bar No. 242020 [email protected] Florida Bar No.948748

Eleni Blumenfeld-James Victoria Katz Rules Attorney Rules Attorney Aderant Aderant 200 Corporate Pointe, Suite 400 200 Corporate Pointe, Suite 400 Culver City, CA 90230 Culver City, CA 90230 310/553-3355 310/553-3355 [email protected] [email protected]

Heather Savage Telfer Krys Godwin, Director Attorney Staff Liaison Attorney Staff Liaison The Florida Bar The Florida Bar 651 East Jefferson Street 61 East Jefferson Street

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 42 of 185 Tallahassee, FL 32399-2300 Tallahassee, FL 32399-2300 850/561-5702 850/561-5706 [email protected] [email protected] Florida Bar No. 139149 Florida Bar No. 2305

Paul R. Regensdorf Richard A. Nielsen 3494 SW Forest Hills Court Circuit Judge Palm City, FL, 34990 Thirteenth Judicial Circuit 954/ 562-9598 800 E. Twiggs Street, [email protected] Tampa, Florida 33602 [email protected] 813/272-5774 Florida Bar No.152395 [email protected] Florida Bar No.164118

Donald E. Christopher Robert M. Eschenfelder 200 South Orange Avenue P.O. Box 958 Post Office Box 1549 Bradenton, Florida Orlando, Florida 32802 727/403-5007 407/422-6600 [email protected] [email protected] Florida Bar. No. 8435 Florida Bar No. 250831

CERTIFICATE OF COMPLIANCE

I certify that this comment was prepared in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

I certify that this rule has been read against Thomson Reuters’ Florida Rules of Court, Vol. I — State (2017 edition).

/s/ Mikalla Andies Davis Mikalla Andies Davis Attorney Liaison The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-2300 850/561-5663 [email protected] Florida Bar No. 100529

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 43 of 185

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CASE NO.: SC17-882 APPELLATE PROCEDURE, THE FLORIDA RULES OF CIVIL PROCEDURE, THE FLORIDA RULES OF CRIMINAL PROCEDURE, AND THE FLORIDA RULES OF JUDICIAL ADMINISTRATION—ELECTRONIC SERVICE

RESPONSE TO COMMENTS BY THE RULES OF JUDICIAL ADMINISTRATION COMMITTEE, THE APPELLATE COURT RULES COMMITTEE, AND THE CRIMINAL PROCEDURE RULES COMMITTEE

Judson Lee Cohen, Chair of the Rules of Judicial Administration Committee, Landis Vernon Curry, III, Chair of the Appellate Court Rules Committee, the Honorable Jon Berkley Morgan, Chair of the Criminal Procedure Rules Committee (hereinafter the “Committees”), and John F. Harkness, Jr., Executive Director of The Florida Bar, file this response to comments.

In response to the comments received, the Committees respectfully decline to propose additional amendments or further revisions to the proposals. Upon further consideration, the Committees concluded that it was important to specify which day a practitioner should use to begin counting deadlines.

The proposals to amend Florida Rules of Judicial Administration 2.514 (Computation and Extending Time) and 2.516 (Service of Pleadings and Documents) went twice to The Florida Bar’s Board of Governors. During the first review by the Board of Governors, a few board members were opposed deleting the subdivision that requires e-mail service be treated the same as service by U.S. mail for purposes of computing time which would add 5 days to the response period for documents served by e-mail. The Appellate Court Rules Committee proposed an amendment changing its computation of time rule to add the 5 days back into the appellate rules. A few board members raised concerns that deleting the 5-day rule could promote “gamesmanship,” in which parties file at midnight on Friday night just before a long holiday weekend. The Bar President asked the Committees to work toward a compromise that would avoid different computation of time rules.

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 44 of 185

Members of the Rules of Judicial Administration Committee, Appellate Court Rules Committee, Criminal Procedure Rules Committee, Civil Procedure Rules Committee, and Small Claims Rules Committee met and agreed that, in exchange for the amendment clarifying when a party may or must act within a specified time after service, the computation of time begins the next day after a document is served that is not a holiday or weekend, the Appellate Court Rules Committee would not pursue its conflicting computation of time amendment. The Appellate Court Rules Committee would also add additional time, as appropriate, to the response deadlines in the Florida Rules of Appellate Procedure. The compromise was not dictated by the Bar President or by the Board of Governors, but was agreed by members of the participating Committees.

This compromise sought to even the playing field and eliminate the opportunity for “gamesmanship.” Critically, this compromise would also assist attorneys that have all documents served to a general e-mail address with no one to forward served documents to the appropriate attorney over the weekend. This situation often arises for those attorneys working at government agencies, including prosecutors and public defenders. Those attorneys may also be working on cases with expedited deadlines not subject to extension. Also, there was a broader concern amongst the members of the Appellate Court Rules Committee that practitioners would have to check e-mail around the clock to be on top of any served documents. Creating a 24/7 practice was expressly rejected in the original e-filing report. (See Appendix G–21-G–22.)

The compromise proposal—removing the additional 5 days for service of documents via e-mail, but amending Rule 2.514 (Computing and Extending Time) to clarify that one should “begin counting from the next day that is not a Saturday, Sunday, or legal holiday”—went back to the Board of Governors, which approved it by a vote of 47-0.

KATZ COMMENT

Ms. Victoria Katz suggested that the Committees’ proposed amendment would dramatically alter deadlines and provide too much extra time for practitioners. Ms. Katz suggested an alternative amendment to Florida Rule of Judicial Administration 2.514(a)(1) that would provide that “[d]ocuments served by e-mail after 5:00 p.m. Eastern Time are deemed served the next court day.” The Committees believe that this proposal would cause a great deal of confusion. Among other things, it would fundamentally alter the deadline for any documents that have a “service deadline,” rendering documents served after 5:00 p.m. on the deadline date

2 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 45 of 185

technically late. This would create an even greater hardship for attorneys in the Central Time Zone, who under the proposal would only have until 4:00 p.m. to serve their documents timely. Additionally, the Committees are aware of judges who work weekends and enter orders on holidays through their judicial viewers. The Committees were not concerned with being inconsistent with other states. While working on the concern, the Committees did consider a compromise that would allow an additional 3 days for service by mail or e-mail, that would conform the Florida system with the Federal system; however, in December 2016, the Federal system deleted its additional days for service by e-mail. (Fed. R. Civ. P. 6(d) (Amended 2016).) The Committees found a different compromise.

REGENSDORF, NIELSON, CHRISTOPHER, AND ESCHENFELDER COMMENT

The Committees respect the views of the original “Joint Committee Members,” but feel that the addition of the clarifying language proposed for Rule 2.514(a)(1)(A) is not contradictory with the instantaneous nature of service by e-mail. The proposal in front of the Court still removes the additional 5 days for document served via e-mail.

While the Joint Committee Members may have “always expected that extra days would be eliminated once eservice became pervasive and was broadly accepted by the Bar” (See Joint Committee Members’ comment at 3.), the report submitted to this Court in 2010 does not reflect the same. (See Appendix G-21-G-22.)

The fears of “gamesmanship” were raised as a result of the original proposal to delete the additional 5 days for service by e-mail. The Committees thank the Joint Committee Members for the data, but as the additional 5 days are still in effect for both mail and e-mail, the data might not yet reflect the last-minute filings that are spurring the concerns.

While attorneys in private practice often check their e-mail for served documents after traditional office hours, this is not permissible for attorneys in agencies that may have all documents served to a general e-mail address with no one to forward served documents to the appropriate attorney over the weekend. Since service practices vary, the Committees endeavored to find a compromise that could work for all practitioners—not just for civil practitioners.

3 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 46 of 185

RESPONSE TO COMMENT OF THE CIVIL PROCEDURE RULES COMMITTEE

The Committees note that members of the Civil Procedure Rules Committee were involved in the compromise and did not indicate a concern that the compromise proposal was “overly broad.” The Committees believe the proposal submitted by the Civil Procedure Rules Committee in its response to the comment filed August 8, 2017, is overly complicated. The Civil Procedure Rules Committee’s response suggests its proposed language is superior as it is “in conformity with the title of the subdivision.” (See Civil Procedure Rules Committee Response, at 3.) The Committees’ submission proposes amending the subdivision title of Rule 2.514(b), removing “or E-mail.” (See Appendix B–23.)

The Committees decline to change filing and service deadlines from 11:59 p.m. to 5:00 p.m., because documents filed in the Florida Courts E-filing Portal are simultaneously served upon filing. Keeping the deadline as 11:59 p.m. will allow for the greatest flexibility in the practice of law in Florida.

Wherefore, as the Committees have reviewed the submitted comments, the Committees decline to propose additional changes to the proposed amendments. The Committees ask the Court to approve the amendments as proposed in the May 12, 2017, submission.

Respectfully submitted on August 24, 2017.

/s/ Judson Lee Cohen /s/ John F. Harkness, Jr. Judson Lee Cohen, Chair John F. Harkness, Jr. Rules of Judicial Administration Executive Director Committee The Florida Bar Weinstein & Cohen, P.A. 651 East Jefferson Street 14125 NW 80th Avenue, Suite 400 Tallahassee, FL 32399-2300 Miami Lakes, FL 33016-2350 850/561-5600 305/374-1011 [email protected] [email protected] Florida Bar No. 123390 Florida Bar No. 948748

4 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 47 of 185

/s/ Landis Vernon Curry, III /s/ Hon. Jon Berkley Morgan Landis Vernon Curry, III, Chair Hon. Jon Berkley Morgan, Chair Appellate Court Rules Committee Criminal Procedure Rules Committee Hill Ward Henderson State of Florida 101 E. Kennedy Blvd., Suite 3700 2 Courthouse Square, Room 6420 Tampa, FL 33602-5195 Kissimmee, FL 34741-5487 813/221-3900 407/742-2516 [email protected] [email protected] Florida Bar No. 469246 Florida Bar No. 242020

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was furnished by e-mail, via the Florida Courts E-filing Portal, on August 24, 2017, to:

Alison Verges Walters Eleni Blumenfeld-James Small Claims Rules Committee Rules Attorney Kelley Kronenberg Attorneys at Law Aderant 1511 N. West Shore Blvd., Suite 400 200 Corporate Pointe, Suite 400 Tampa, FL 33607-4596 Culver City, CA 90230 813/223-1697 310/553-3355 [email protected] [email protected]

Michael Thiel Debski Victoria Katz Chair, Small Claims Rules Committee Rules Attorney Debski & Associates, P.A. Aderant P.O. Box 47718 200 Corporate Pointe, Suite 400 Jacksonville, FL 32247-7718 Culver City, CA 90230 904/425-0901 310/553-3355 [email protected] [email protected]

Paul R. Regensdorf Hon. Richard A. Nielsen 3494 SW Forest Hills Court Circuit Judge Palm City, FL, 34990 Thirteenth Judicial Circuit 954/ 562-9598 800 E. Twiggs Street, [email protected] Tampa, Florida 33602 [email protected] 813/272-5774 [email protected]

5 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 48 of 185

Donald E. Christopher Robert M. Eschenfelder 200 South Orange Avenue P.O. Box 958 P.O. Box 1549 Bradenton, Florida Orlando, Florida 32802 727/403-5007 407/422-6600 [email protected] [email protected]

Hon. Rodolfo Armando Ruiz, II Chair Civil Procedure Rules Committee Miami Dade County Courthouse 73 West Flagler Street, Suite 416 Miami, FL 33130-1715 305/349-7082 [email protected]

CERTIFICATE OF COMPLIANCE

I certify that this report was prepared in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

/s/ Krys Godwin Krys Godwin, Staff Liaison Rules of Judicial Administration Committee The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399-6584 850/561-5706 [email protected] Florida Bar No. 2305

/s/ Heather Savage Telfer Heather Savage Telfer, Staff Liaison Appellate Court Rules Committee Criminal Procedure Rules Committee The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-6584 850/561-5702 [email protected] Florida Bar No. 139149

6 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 49 of 185 Filing # 60863748 E-Filed 08/24/2017 02:29:02 PM

September 20, 2016 Meeting Minutes Ad Hoc Subcommittee - Eliminating 5 'Mailing' Days When Service Done by E-Service

The Ad Hoc Subcommittee held a phone meeting on September 20, 2016. The goal of this Ad Hoc Subcommittee was to try to arrive at a consensus position between the RJA, Appellate Rules and Civil Procedure Rules regarding proposed rule amendments of those committees that dealt with the 5 additional 'mailing' days when service was accomplished via e-service. By way of history, RJA and Civil Procedure proposed rule amendments that in summary, eliminated the additional 5 'mailing' days when service is accomplished by e-service. In response, Appellate proposed a rule amendment that opted out of the RJA rule eliminating the 5 'mailing' days (thereby retaining the status quo for Appellate rules). When the three groups of proposed rule amendments came before the Florida Board of Bar Governors, concerns were raised by several of the Governors.

The primary concerns were a lack of uniformity among the three rule sets (RJA, Appellate and Civil), “gamesmanship” of filing at 11:59 on a Friday night, not wanting to give up the extra 5 days, and inconsistency with the Fax rule. It was suggested that the three rules committees reconsider the issue and see if a consensus could be reached on how the three rules committees dealt with the 5 'mailing' days issue. The respective committees decided to form an Ad Hoc Subcommittee to explore the issue and provide a report sufficiently far in advance of the next full committee meetings (the week of October 17th), to allow each of the committees to discuss and vote on the issue. Judson Cohen was appointed Chair of this Ad Hoc Subcommittee.

Although this issue arose because of proposed amendments from RJA, Appellate and Civil Procedure, members of Criminal Rules, Family Rules and Small Claims Court Rules were invited to attend and participate. The call started on September 20, 2016 at Noon and the following members attended:

Judson Cohen - RJA - Chair Ad Hoc; Stanford R. Solomon - RJA;

Appendix F – 1

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 50 of 185 Landis Curry III - Appellate; Jeffrey Kuntz - Appellate; Keith Park - Civil Procedure; Meredith Charbula - Criminal Procedure; Mara Marzano - Criminal Procedure; and, Alison Verges Walters - Small Claims.

Heather Telfer and Krys Godwin attended as Florida Bar liaisons. The following members were unable to attend:

Ardith Bronson - Civil Procedure; and, Judge Laurel Moore Lee - Family.

Judson Cohen and Sandy Solomon outlined the RJA's position that eliminating the 5 'mailing' days for e-service was a step that was always contemplated when the e- service rules were first drafted by the RJA. The RJA was tasked with creating rules for e-service at a time when the State Courts were moving toward electronic docketing systems, similar to the Federal Pacer system. The proposed Florida electronic docketing systems were going to be slow to come online fully and initially, the docketing systems would only allow filing, not service of filed papers on counsel of record. Accordingly, a rule was required to allow service of pleadings electronically. The e-service rule would initially provide service rules for all pleadings and papers.

Eventually, when the docketing systems allowed for service of pleadings through the State Court portal, the e-service rule would control primarily pleadings that were served but not filed, such as discovery answers and offers of judgment. E- filing and e-service were monumental shifts in the way all Florida practitioners filed and served pleadings. Understandably there was a significant minority that had reservations about the new technology and method of service. Concerns included reliability of the technology and whether it would unduly increase time pressures on those involved in the legal process. At that time, the RJA discussed eliminating the 5 'mailing' days when service was accomplished by e-service. At that time it was felt that the 5 'mailing' days would be retained to try to reduce

Appendix F – 2

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 51 of 185 resistance to the inevitable technology change and address concerns over the new technology of internet for filing and service.

Judson and Sandy Solomon explained that from the very outset, the RJA planned to propose changing the e-service and e-filing rules to eliminate the 5 'mailing' days once the new technology was in widespread use and shown to be reliable. Now that e-filing and e-service are being used reliably, maintaining the fiction that an e-mail takes 5 days to be transmitted no longer makes any logical sense. It was noted that the Federal Court rule makers addressed this same issue recently and they elected to remove the 3 'mailing' days afforded under Federal Rule 6. This amendment will become effective December 1, 2016.

Lance Curry outlined Appellate's reasons for their vote to 'opt out' of the RJA amendments and essentially retain the 5 'mailing' days. Lance noted that Appellate thoughtfully considered the issue and there were three main groups in the discussion. The majority of Appellate felt that the deadlines were too short, that obtaining a continuance was not always feasible when additional time was needed and that amending all the effected rules to add back in the 5 additional days would be too cumbersome. Also, there was a concern that e-mail may not be delivered immediately for some governmental entities such as the DCF (Department of Children and Families). This majority also expressed concerns over potential gamesmanship tactics, such as e-filing/service late at night before a weekend or holiday to artificially shorten a time period for a response. The minority in Appellate was divided into two groups. One minority position was a vote to simply adopt the RJA amendments thereby making RJA, Appellate and Civil Procedure uniform in the elimination of the 5 'mailing' days when service was done electronically. The other minority position of Appellate was to adopt the RJA amendments thereby eliminating the 5 'mailing' days, but to amend each deadline to add the 5 days.

Keith Park set forth Civil Procedure's rationale for adopting the RJA amendments, thereby eliminating the 5 'mailing' days for Civil Procedure. Essentially Civil Procedure felt that e-service was reliable and instantaneous and therefore the 5 additional days for delayed delivery, formerly reserved for mail, did not need to be retained. Keith mentioned that Civil Procedure felt that changes in time limits for Appendix F – 3

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 52 of 185 things like discovery, responsive pleadings, etc., were unnecessary as practitioners could readily obtain enlargements of time when required.

Meredith Charbula and Mara Marzano said that the Criminal Rules Committee had not weighed in on this particular issue. They said that prior to the next Ad Hoc meeting of September 26th, they would obtain input from Criminal Rules on this issue. They did note that currently, Criminal Rules provides for 3 additional days when service is made by mail or e-mail. See, Rule 3.070. [However, Rule 3.040 states that " Computation of time shall be governed by Florida Rule of Judicial Administration 2.514(a), except for the periods of time of less than 7 days contained in rules 3.130, 3.132(a) and (c), and 3.133(a)."]. Meredith did mention that she would prefer to see uniformity among the rule sets on this issue if possible.

Alison Vergas Walters of Small Claims Rules indicated that the Small Claims Committee had not addressed this issue. Alison indicated she would obtain input from Small Claims on the issue prior to the next meeting of this Ad Hoc Sub- Committee. Alison did mention that she had a concern as to how these potential rule changes might affect pro se parties, primarily pro se defendants.

Lance Curry also wanted to convey a concern raised by Wendie Cooper on Appellate. Wendie often handles Juvenile proceedings in the 1st District Court for Appeals. Wendie mentioned that there was an administrative order in the 1st DCA stating that there will be no enlargements of time in Juvenile proceedings. Moreover, there is sometimes a delay in her getting e-service pleadings as pro se parties serve a general e-mail for Department of Children and Families who then has to route the e-service to her attention. Lance Curry offered a possible solution to alleviate this particular concern of providing that Governmental lawyers always get five days from service regardless of how service was done (mail, e-service, fax, etc.). Lance noted that this suggestion was not necessarily from Appellate Rules Committee but his personal suggestion.

Judson Cohen noted that he had perused the rules of other States and how they addressed this issue. Some State rule sets retained additional days even when service was made by electronic means, such as e-mail or fax, some eliminated the 'mailing' days when service was made electronically. No effort was made to take a Appendix F – 4

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 53 of 185 formal tally, only to note that the issue was being addressed and the response amongst State rules sets was not uniform. Of note, there were a few rule sets, such as Minnesota, that provided for special rules when delivery was made after 5 p.m. For example, in Minnesota, when delivery was made after 5 p.m., a day was added to the time period. This is true even though calculation of time begins, like Florida, on the day after the service occurs. The Minnesota Advisory Committee note on this issue essentially stated that the extra day when delivery was made after 5 p.m. was to discourage the unseemly practice of trying to gain a tactical advantage by effectuating deliveries by sliding a late delivery in under the door after hours.

Judson Cohen noted that RJA Rule 2.514(a)(1) states that you start counting the day after service is made for all deadlines (except deadlines stated in hours). Accordingly, e-service at 10 a.m. and e-service at 11 p.m. would both result in the first day of the time period being the following day. Judson noted that currently the RJA rules provided for no additional 'mailing' days when service is made by e- service AND by either fax or hand delivery. However, Judson did note that RJA Rule 2.516 (b) (2)(F) states that if any of these other methods (fax or hand delivery) are used, and service occurs after 5 p.m., the service shall be deemed to have occurred by mail, thus adding back in the 5 'mailing' days. Thus, the current RJA Rule 2.516 (b)(2)(F) removes some of the potential gamesmanship, namely 'after hours' deliveries by courier or fax to try to artificially shorten responsive time periods.

Judson did make a personal suggested rule change to RJA Rule 2.514 that would seem to address concerns that late e-service prior to a weekend or legal holiday could be done to strategically shorten response times. This rule change would add language to Rule 2.514(a)(1)(A) to change the first day when counting the time- period for response times. The suggested additional language is in red:

Fla. R. Jud. Admin. 2.514 Computing and Extending Time

Appendix F – 5

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 54 of 185 (a) Computing Time. The following rules apply in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time

(A) exclude the day of the event that triggers the period and begin counting from the next day that is not a Saturday, Sunday, or legal holiday;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

Judson did mention that this was not a suggestion by the RJA Committee, and that he preferred NOT to make this amendment but to simply move forward with eliminating the 5 additional 'mailing' days for e-service. The suggested amendment was only made to see if the amendment would persuade Appellate to adopt the RJA and Civil Procedure Amendments eliminating the 5 'mailing' days for e-service.

At this point the meeting was adjourned.

Appendix F – 6

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 55 of 185 September 26, 2016 Meeting Minutes Ad Hoc Subcommittee - Eliminating 5 'Mailing' Days When Service Done by E-Service The Ad Hoc Subcommittee held its second phone meeting on September 26, 2016. The goal of this Ad Hoc Subcommittee was to try to arrive at a consensus position between the RJA, Appellate Rules and Civil Procedure Rules regarding proposed rule amendments of those committees that dealt with the 5 additional 'mailing' days when service was accomplished via e-service.

The call started on September 26, 2016 at 11:00 a.m. and the following members attended:

Judson Cohen - RJA - Chair Ad Hoc; Stanford R. Solomon - RJA; Ardith Bronson - Civil Procedure; Landis Curry III - Appellate; Jeffrey Kuntz - Appellate; Keith Park - Civil Procedure; Meredith Charbula - Criminal Procedure; Mara Marzano - Criminal Procedure; and, Michael Debski for Alison Verges Walters - Small Claims.

Heather Telfer attended as Florida Bar liaison. The following member was unable to attend:

Judge Laurel Moore Lee - Family.

Meredith Charbula and Mara Marzano (Criminal Procedure) indicated that they sought informal input from Criminal Rules, though no official vote was taken. In general, they indicated that Criminal Rules did not seem to have a strong position either in favor of or against the removal of the 5 'mailing' days for e-service. Both indicated that Criminal Rules generally expressed that uniformity among the rule sets was most important so that computation of time should be the same amongst the various rule sets. They said that Criminal Rules seemed to be leaning toward the RJA/Civil Procedure view of removing the 5 'mailing' days for e-service.

Appendix F – 7

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 56 of 185 Meredith Charbula indicated that she personally would favor amending to provide for 5 'mailing' days for ALL types of service, mail, e-service, fax and hand- delivery, rather than amending to eliminate the 5 'mailing' days for e-service.

Mara Marzano indicated that she personally felt that removing the 5 'mailing' days for the instantaneous e-service made sense and if additional time was needed, the actual deadline for a response in the rule should be amended to provide the proper amount of time to respond.

Michael Debski (Small Claims Rules) said that there was no formal polling of the Small Claims Rules but that Small Claims continued to have concerns that pro se parties might have difficulty calculating time and using the correct e-mail. Michael Debski thought that forms for e-mail designation may help with pro se practitioners who choose to serve by e-mail. Michael Debski acknowledged that the concerns regarding pro se parties calculating response times did not necessarily militate toward wanting to remove or retain the 5 'mailing' days for e-service, just that pro se parties might have a more difficult time calculating response times if the computation of time was difficult to calculate.

Michael Debski noted that he personally liked the idea of 5 additional days no matter how service was made, mail, e-service, fax or hand delivery.

Heather Telfer (Florida Bar liaison) did note that there is currently an anomaly in treating a fax as instantaneous delivery, therefore removing the 5 'mailing' days, but an e-mail is treated as mail, thus adding 5 'mailing' days. Heather Telfer indicated that she had talked with a representative from Traffic Court Rules and they had no real concern regarding the removal of the 5 'mailing' days for e- service.

Landis Curry III (Lance) and Jeffrey Kuntz (Appellate Rules) indicated that they went back to Appellate Rules to see whether possible suggested changes to the proposed RJA amendments would alleviate concerns. Specifically, the Appellate Rules wanted to see possible amendments that reduced the Gamesmanship Concerns like serving late, or on a Friday or before a holiday. Some of these same concerns were voiced by the Governors. Also, there were concerns that some Governmental Lawyers, such as those who practice in Juvenile proceedings in the 1st DCA, may not receive e-mails over a weekend or holiday, and extensions may

Appendix F – 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 57 of 185 not be forthcoming. Lance Curry and Jeffrey Kuntz felt that the suggested revision to RJA Rule 2.514(a)(1)(A)1 might alleviate Appellate Rules' concerns enough where they would agree to drop their proposed amendment that 'opted out' of the RJA amendments. [If this occurred and if the RJA and Civil Procedure Amendments were approved, this would mean that ALL rule sets would be uniform in the Computation of Time for service by mail, e-mail, fax and hand delivery].

Lance Curry and Jeffrey Kuntz asked if there was a way to get some indication from the RJA to see if the RJA would approve the proposed revision to 2.514(a)(1)(A) as part of their proposed amendments that remove the 5 'mailing' days. Lance and Jeffrey wanted to see if this could occur before Appellate Rules voted on its position. Appellate Rules is meeting Friday October 21st from 8 a.m. to noon. RJA is meeting October 21st at 1 p.m. Sandy Solomon and Judson Cohen as Co-Chairs of the RJA said they would try to accomplish that. Judson Cohen also suggested that Appellate Rules could vote its proposed Rule change contingent on RJA revision of Rule 2.514(a)(1)(A).

At this point, Sandy Solomon made a motion to approve Judson's suggested amendment to RJA Rule 2.514(a)(1)(A). Keith Park seconded the motion and the motion passed unanimously 9-0 in favor of the amendment. The added language in the proposed amendment is set forth in RED AND BOLD, the language removed by this proposed amendment is set forth in Blue Strikeout and the original proposed amendment to RJA Rule 2.514(a)(1)(A) is in Green Strikeout:

Fla. R. Jud. Admin. 2.514 Computing and Extending Time

(a) Computing Time. The following rules apply in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time

1 The proposed rule change would add language to Rule 2.514(a)(1)(A) to change the first day you begin counting to determine a deadline when service is made by e-service. 2.514(a)(1)(A) addresses how to compute time when service is made by e-service and the period for a response is stated in days or longer. Appendix F – 9

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 58 of 185

(A) exclude the day of the event that triggers the period BEGIN COUNTING FROM THE NEXT DAY THAT IS NOT A SATURDAY, SUNDAY, OR LEGAL HOLIDAY;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

(2) Period Stated in Hours. When the period is stated in hours

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, or during any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

(3) Period Stated in Days Less Than Seven Days. When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. Appendix F – 10

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 59 of 185

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends

(A) for electronic filing or for service by any means, at midnight; and

(B) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The ―next day is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. ―Legal holiday means

(A) the day set aside by section 110.117, Florida Statutes, for observing New Year’s Day, Martin Luther King, Jr.’s Birthday, Memorial Day, Independence Day, Labor Day, Veterans’ Day, Thanksgiving Day, the Friday after Thanksgiving Day, or Christmas Day, and

(B) any day observed as a holiday by the clerk’s office or as designated by the chief judge.

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or email, 5 days are added after the period that would otherwise expire under subdivision (a). If the proposed change to RJA Rule 2.514(a)(1)(A), was adopted it was the consensus of the Ad Hoc subcommittee that a uniform approach among the rule sets by removing the 5 'mailing' days for e-service was preferable. It should be noted that there was no vote to this effect, other than the RJA and Civil Procedure representatives; none of the other representatives were giving an official position of their respective Rules committee. Lastly, the dissenting viewpoints of the Ad Hoc Subcommittee members who were inclined to do something other than remove the 5 'mailing' days for e-service are noted in the minutes.

Appendix F – 11

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 60 of 185 At this point the meeting was adjourned.

Appendix F – 12

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 61 of 185 Filing # 60863748 E-Filed 08/24/2017 02:29:02 PM

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION CASE NO. SC10­

OUT-OF-CYCLE REPORT OF THE FLORIDA RULES OF JUDICIAL ADMINISTRATION COMMITTEE ON EMAIL SERVICE AND CONFORMING CHANGES IN THE OTHER COURT RULES OF PROCEDURE

John G. Crabtree, Chair, Appellate Court Rules Committee, Donald E.

Christopher, Chair, Civil Procedure Rules Committee, Robert Eschenfelder, Chair,

Code and Rules of Evidence Committee, Robert T. Strain, Chair, Criminal

Procedure Rules Committee, Steven P. Combs, Chair, Family Law Rules

Committee, William W. Booth, Chair, Juvenile Court Rules Committee, Jeffrey S.

Goethe, Chair, Probate Rules Committee, Katherine E. Giddings, Chair, Rules of

Judicial Administration Committee (“RJA”), Michele A. Cavallaro, Chair, Small

Claims Rules Committee, John J. Anastasio, Chair, Traffic Court Rules

Committee, and John F. Harkness, Jr., Executive Director, The Florida Bar, file

this Out-Of-Cycle Report of the RJA on Email Service, proposed Fla. R. Jud.

Admin. 2.516, and conforming changes to other rules of procedure, and

respectfully request that this Court approve the attached proposed rules with

respect to email service. In addition, the Criminal Procedure Rules Committee and

Code and Rules of Evidence Committee file comments.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 62 of 185 INTRODUCTION

For over one hundred years, lawyers practicing in Florida courts have communicated with each other in essentially two ways: by telephone and, when pleadings and court papers had to be served, by U.S. Mail. Paper is inserted into a machine; ink is mechanically applied to the paper; the paper is removed, signed by hand, folded, and stuffed in an envelope; postage is glued onto an envelope that is addressed in the same manner; the envelope is sealed, and the mail is taken to a post office. Reliably, one to four days later, the vast majority of that mail is delivered, and the cycle repeats itself as the receiving lawyer prepares his or her response to the pleading.

Although electronic mail (or email) has been added to virtually every lawyer’s available options as a means of informal communication with other lawyers, the means by which pleadings and other documents are formally exchanged between counsel, and among counsel and Florida’s courts and clerks, has changed little. The use of paper delivered by U.S. Mail predominates in

Florida courts today, with few exceptions.

For the reasons delineated in this report, Florida lawyers on the RJA, joined by all of The Florida Bar rules committees, present to this Court a series of proposals which, if accepted by this Court, will be the first significant comprehensive change in the manner in which law is practiced in Florida in well

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 63 of 185 over a century. The changes contained herein will require a conversion to email as the predominant means of service of pleadings between lawyers and will accelerate the process of converting Florida's legal system from a paper-based system to a digital system so that lawyers, the courts, and the public they serve in Florida can obtain the many benefits of an efficient and practical electronic court system.

OVERVIEW OF PROPOSED RULE 2.516

In the mid 1990s, the RJA took the first step toward moving the practice of law and the court system in Florida into the electronic age by amending Rule 2.090 in anticipation of the day when lawyers would be able to file documents in court electronically. Amd. to the Rules of Jud. Admin. — Rule 2.090 —Electronic

Transmission and Filing of Documents, 681 So. 2d 698 (Fla. 1996).

For the next 12 to 14 years, although the court system worked steadily toward grooming the system for the day when there would actually be electronic access to court files, the progress was measured at best, and lawyers, by and large, continued to practice as they had for the preceding 100 years.

In the year and a half before June 2009, at least three different rules committees (the Rules of Civil Procedure, the Rules of Appellate Procedure and the RJA), considered the possibility that there was some way to allow attorneys to at least deliver copies of pleadings to each other by email or some other electronic means, so as to make the system more efficient and less expensive. This was in

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 64 of 185 part because there appeared to be no comprehensive e-filing/e-court system on the horizon. Those efforts were not coordinated and did not yield any final proposal.

Because of this interest by the Bar, the chairs of each of The Florida Bar’s rules committees were asked in June of 2009 to designate at least one member of their committees to serve on a joint committee to explore the possibility of a comprehensive proposal for email service. This ad hoc committee, chaired by Paul

Regensdorf, became known as the Joint Email Service Committee and began its work in July of 2009.

From that date until the date of this filing, it can fairly be reported to this

Court that the representatives of each of the ten rules committees, unanimously, and later, in January 2010, each of the ten rules committees acting as full committees, unanimously, endorsed the concept of developing a new method of electronic service in Florida. In the summer of 2010, each committee acted to approve Rule 2.516 in concept and to create the necessary conforming changes to its own set of rules to implement email service. The Florida Bar rules committees present these proposals to implement email service for all lawyers in Florida.

FACTORS DRIVING EMAIL SERVICE PROPOSAL

Because Florida will in the near future have an operational e-filing system comparable to that already in existence in the federal court system, and because that e-filing system will eventually have an electronic service component, the

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 65 of 185 implementation of email service is an important bridge between the paper-based world of the past and the electronic-based court of the future. Because this pure email service system will only exist for the majority of lawyers until the fully integrated e-filing portal is operational in all divisions of all courts in all counties, the sooner it can be implemented, the sooner lawyers will begin to practice those skills and establish those procedures that will be necessary for the electronic court of tomorrow.

When the Joint Committee first met, there was a determined belief among each of the representatives of the various rules committees that four principles, which are discussed below, should guide the development and ultimate implementation of the rule. The Joint Committee further believed that its work and the work of the ten separate rules committees that were represented on the Joint

Committee should be completed as quickly as possible. The conversion of the legal system to an electronic procedure for service is an important and significant first step toward establishing an e-courts system in Florida.

A. The Timing Consideration

The Joint Committee determined it is essential that any email service rule be approved and implemented without delay; the adoption of an email system for the service of pleadings can be accomplished with practically no cost to the Bar and the courts. Working on both a draft email service rule and the complex task of

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 66 of 185 presenting to the court a package of rules for all rules committees to implement email service, the process has gone from the genesis of an idea to a complete package for this Court in just over 14 months.

B. The Four Core Concepts Behind Email Service.

When the Joint Committee first met, its representatives from each of the rules committees, after discussing the concerns about antiquated regular mail service in Florida, unanimously recognized that an alternative means of electronic service needed to be established and identified four basic core concepts that any system of electronic service (or email service) should adhere to. Those concepts are: (1) the system would have to be mandatory for all lawyers across all courts throughout the State of Florida, with very limited exceptions;, (2) the procedure should be uniform across the State of Florida, in whatever court or division or level of court the service would be accomplished; (3) the changes in the means of service should be as simple as possible so as to ease the approximately 88,000 members of The Florida Bar into the digital age; and (4) the new email service rule should be located in only one place, the Rules of Judicial Administration, and should not be repeated in other rules of procedure.

These four core concepts, established in July 2009, continue to be the controlling concepts behind Rule 2.516 and the various other conforming rules.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 67 of 185 1. Email Service Needs to be Mandatory for All Lawyers.

The RJA recognizes it is human nature for people to resist change and, when change is proposed, the inclination to resist that change may be substantial.

However, it was the strong and unanimous belief of the joint committee that email service needs to be made mandatory for all lawyers and that the time to transform the method of service used by lawyers in Florida is now. The reasons are largely self-evident.

In order to get the maximum benefit available to a change from mail service to email service, the system must be established in a way that requires all lawyers at the same time to convert from regular mail service to an email service format.

The court system has for 15 years technically had an e-filing system that essentially required the utilization of paper as a backup. One result of that decision was, in many situations, the required maintenance of two systems, paper and electronic, which may have actually impeded the modernization of the legal system. To allow the continuance of both paper and electronic formats would defeat the purpose of the change and doom Florida lawyers to an unnecessary period of wasted time, energy, and expense.

However, nothing in this proposal requires that lawyers or law firms abandon paper altogether; if lawyers wish to maintain a paper system and duplicate the electronic system that would be created as a result of this means of service,

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 68 of 185 they are free to do so. The cost and expense of that duplication, however, would be borne by those lawyers who choose not to modernize. But to force that unnecessary expense on lawyers as a whole would be unreasonable and would delay the improvement of the court system.

As discussed below, there is one limited circumstance in which lawyers should not be required to utilize email service, but that exception deals with the impossibility of using it as a delivery technique, and not a voluntary choice to use regular mail service.

2. The system should be uniform across Florida.

While this set of rules was developing through the Bar’s committee structure, many other lawyers, judges, and clerks throughout the state have been working to implement the beginnings of the statewide portal for electronic filing of documents. Just as that system anticipates a single uniform delivery point for pleadings to be sent for all divisions of all courts in all counties and all circuits, so too should lawyers serving documents on opposing parties and counsel be entitled to expect that a single uniform statewide system is available for that purpose.

While this package of rules does make appropriate allowance for pro se individuals who may not be able to (or who choose not to) use email, it is the expectation of the RJA and all of the other committees that email service should be applicable under each set of rules and in every type of court proceeding in Florida.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 69 of 185 3. The proposed email service system should be kept simple.

The third core concept in Rule 2.516 and the conforming changes in the other rules sets is that the system called for in these rules should be as simple as possible, thereby easing the transition for lawyers from mail service to email service as much.

To accomplish this, the Joint Committee selected Rule 1.080 of the Florida

Rules of Civil Procedure as its base rule so as to use as the platform for email service a format and procedure that is generally familiar to most Florida lawyers.

Also, because there will be limited circumstances in which pleadings and documents may need to be served outside of email service, the basic Rule 1.080 provisions have been largely incorporated into Rule 2.516. The actual method to accomplish email service is no more complicated than sending a regular email with a document attached. No significant training is needed and no technical or expensive equipment is required.

4. The email service rule should be placed in the Rules of Judicial Administration.

Over the years, the rules governing lawyers in their practices in different courts and different types of proceedings have expanded to the point that there are multiple different sets of rules to which a lawyer must look for guidance. As the number of rules sets expanded, many similar concepts, such as service, filing, and discovery, were repeated and reiterated in each of the rules sets. However, as those

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 70 of 185 concepts spread into the different sets of rules, the concepts blurred and changed over time and there was no longer a single consistent meaning or definition for many of the concepts in the various rules sets.

Accordingly, when the Joint Committee first met, and when the issues were first presented to all of the rules committees in January 2010, the concept of consolidating the procedures for email service in one place was universally accepted.

This is not a new concept; over the years and with increasing frequency, procedures that have common application in all courts have more and more been placed in the Rules of Judicial Administration. The procedures for e-filing, public access to records, computation of time, disqualification of judges, size and type of paper, pro hac vice motions, and numerous other concepts are now centrally located in the Rules of Judicial Administration.

Consistent with this trend and for the laudable reason of ensuring that any necessary changes in the email service rule can be made quickly and efficiently through one rules committee, it was the unanimous conclusion of the Bar and its committees that the place for the email service rule would be in the Rules of

Judicial Administration. However, as discussed below in the section on conforming changes to the juvenile rules, it should be noted that the Juvenile

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 71 of 185 Procedure Rules Committee determined that the email service rule should also be included in its entirety in three juvenile rules.

BENEFITS OF EMAIL SERVICE

A. Generally.

It is respectfully suggested to this Court that the benefits of converting from the paper system using regular mail to an electronic system for the delivery of documents can hardly be debated. Most businesses and professions have long since converted their record-keeping systems to some data management service that utilizes digitalized data rather than archived paper records. Unfortunately, for various reasons, the courts and many lawyers have not yet been able to make that change.

The benefits of a modern digitalized electronic record-keeping and document transmission system are believed to be well known to this Court and to

The Florida Bar, but they will be reiterated briefly below.

B. Benefits to the Bar.

Florida’s lawyers will be the principal beneficiaries of an email service rule that can be utilized by all lawyers until the court system finally implements a complete e-filing portal with an electronic service component for each and every court and division of court in Florida. Each year in Florida, the number of pieces of paper filed in the court system in all divisions of all courts in all counties is not

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 72 of 185 precisely known, but is well in excess of 100,000,000 pages per year, and may easily exceed 200,000,000 pages. If those filed pieces of paper were served on only one other lawyer or party, the number of pages and documents served would obviously equal the number filed in all the courts in Florida. Just as obviously, in every case with multiple parties, the number of pieces of paper mailed out increases directly.

If these millions of pieces of paper were eliminated and transmitted as electronic documents, the savings in terms of paper, ink, toner, postage, envelopes, and labor is incalculable. The corresponding reduction in demands for paper and the destruction of trees is a secondary benefit that is of no small moment.

As substantial as these tangible benefits are, it is respectfully suggested to this Court that the principal benefit to the Bar will be in allowing the immediate transmittal and receipt of information in a verifiable format and in a manner that allows far more flexibility in the use of the digitalized data in subsequent pleadings, documents, or correspondence. The electronic court system has functioned remarkably well in the federal system for years, and if Florida had been able to overcome its political and financial constraints, it may have implemented a comparable system long before this proposal.

Again, the benefits of email service do not need to be accepted by lawyers in their own offices. If attorneys wish to continue using paper in their own internal

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 73 of 185 document managing systems, they can. But the costs for such duplication of files will be borne by them, and not by the vast bulk of attorneys who would be utilizing an electronic format.

The selection of the Internet as a means for the delivery of emails is also of tremendous benefit to virtually all lawyers in the State of Florida. While ten or fifteen years ago the prevalence of Internet access in law firms and the use of email for routine communications was not widespread, in today’s world it is the rare and unusual lawyer or group of lawyers who do not have and regularly use the Internet.

Because the Internet email system has proven to be a reliable system that virtually all lawyers already utilize, and because that system can be designated as Florida’s email service vehicle without any substantial investment, its availability for use is a tremendous benefit.

C. Benefits to the Judiciary.

While the courts do not generate the same volume of paper as lawyers and parties, courts need to deliver to lawyers and parties pleadings, notices, judgments, orders, and other documents — all of which are prepared, typed, stamped, and served in the same way that most lawyers serve pleadings today. A secondary but not insubstantial benefit to the court system in these days of limited public funding is that the courts will also be able to use email service for required and necessary

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 74 of 185 communications with lawyers, and in certain circumstances, non-represented parties.

Just as with lawyers, the increased utilization of the email system for the delivery of documents from the court will also have the secondary advantage of educating judges and court personnel about digitalized record-keeping and will help the courts transition to a fully electronic court.

Finally, as with lawyers in general, it is believed that all courts have at least basic Internet access through adequate computers so that the court system will be able to use email service immediately, with a great savings in terms of paper costs and virtually no outlay of additional expense.

D. Benefits to the Clerks.

The benefits to the clerks of court are directly comparable to the benefits to the courts themselves. As with courts, clerks from time to time are required to serve orders, opinions, notices, and other documents to parties and attorneys and are usually required to do so using paper, ink, toner, envelopes, postage, and the

United States mail.

With the adoption of Rule 2.516 and the conforming changes, clerks will be specifically authorized to serve all such documents by email upon lawyers and individuals who are a part of the email system. Also, as with judges and lawyers, clerks too have computer access to the Internet universally available to them and

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 75 of 185 can participate in this process without any additional increase in capital expenditures or operating costs.

E. Benefits to the Public.

Last, but certainly not least, the public will benefit substantially by the implementation of this rules package. The legal system, which exists to do the public’s work, will work more efficiently and at a lower cost, thereby delivering justice in a more efficient and appropriate way. If attorneys can do their jobs more efficiently and at lower cost, the benefits of necessity will flow to the public. And if judges and clerks are also able to more effectively and efficiently deliver justice in all divisions of our courts, the public is a substantial, if not primary, beneficiary of this benefit as well.

The RJA did not feel it could impose email service on individuals who represent themselves in the court system, but as discussed below, they are authorized by this rule to participate in email service if they are able and willing to do so.

DISCUSSION OF SPECIFIC SUBDIVISIONS OF PROPOSED RULE 2.516 The Title.

The title of this Rule, while taken generally from Rule 1.080, changes the word “papers” to the word “documents” to make the terminology consistent with electronic files.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 76 of 185 Subdivision (a).

This subdivision is taken almost directly from Rule 1.080. The first sentence is slightly rewritten to anticipate the gradual shift from paper filing to electronic transmission of documents, and eventually to filing through the e-portal.

Nevertheless, until that day comes, or until the Supreme Court otherwise orders, service in all courts would be required to comply with this rule.

Specific language in this subdivision addresses concerns raised by probate practitioners. “Documents served by formal notice or required to be served in the manner provided for service of formal notice” are excepted from email service to allow for probate pleadings that must be “served” consistent with Florida Statutes and the probate rules. Such documents are more in the nature of original complaints or petitions than they are in the nature of documents exchanged between counsel who have already noted their appearance in the case.

Subdivision (b).

This small subdivision has not materially changed in the email service rule.

Subdivision (b)(1).

This subdivision establishes the mandatory nature of electronic mail service.

It explicitly states that parties who are required or permitted to serve another party must do so email “unless this rule otherwise provides.” In short, if this rule

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 77 of 185 becomes effective, lawyers will not be able to opt for “traditional” mail service of paper pleadings.

Notwithstanding the efficiencies and benefits of email service, there will still be circumstances in which a litigant will want to deliver a particular document or pleading to the opposing attorney by hand or by facsimile. The second sentence of subdivision (b)(1) allows this by providing that if a sender wishes to use another means of service authorized by this rule (such as hand-delivery), any time limits established by other provisions governing that means of service control. As discussed below, service by email is still intended to give the recipient an additional five days from the date of service to respond, as though the document had been delivered by regular mail. This is consistent with the federal court rules, which likewise provide for additional days from the date of service for documents served electronically. However, if a litigant wishes to speed up that process, the document can still be delivered by hand delivery, and the additional time for mailing will be eliminated.

Subdivision (b)(1)(A).

This subdivision establishes the procedure for the exchange of email addresses to be used in any proceeding. At the time an attorney first appears in a case, that attorney must serve a designation of a “primary” email address and may designate up to two additional or secondary email addresses. The primary address

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 78 of 185 is intended to be the address of the person who would most regularly review incoming emails to determine the service of pleadings and could easily be designated as the individual in a law office whose job it is to receive pleadings.

The secondary email addresses could be designated for partners and associates working on the case, or even a client, if the lawyer wished the client to receive documents immediately. Once the attorney serves the designation of email addresses, those addresses shall be listed on each subsequent document filed in that case.

If, for any reason, an attorney fails or refuses to designate an email address for service, all documents in a particular case or proceeding may be served on that attorney by the sending-attorney at the email address on record with The Florida

Bar. Nothing in this rule is intended to prevent an opposing attorney from filing an appropriate motion with the court to compel the designation of an email address for service.

Subdivision (b)(1)(B).

This subdivision establishes the only exception to mandatory email service on and by attorneys. If an attorney demonstrates that the attorney has no email account and lacks access to the Internet at the attorney’s office, then the court, upon motion, may excuse that attorney from the requirements of email service.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 79 of 185 Once excused, service on and by that attorney thereafter will be by the traditional means found originally in Rule 1.080, but now incorporated in subdivision (b)(2).

No other exceptions were thought worthy of inclusion in the rule. Again, should extraordinary circumstances present themselves, nothing in this rule prevents an attorney from seeking relief from this rule from the court.

Subdivision (b)(1)(C).

This subdivision provides that parties not represented by an attorney are not required to use email service, but they may use email service if they wish. If such parties choose to use email service, they are required to serve a designation of a primary email address and up to two secondary email addresses just as attorneys must do. If they do not designate an email address for service, however, then service by and upon them will have to be made in accordance with subdivision

(b)(2).

Subdivision (b)(1)(D).

This subdivision deals with time of service. It is almost completely analogous to the concept of service by mail. Just as service by mail is complete upon mailing (even though there may be no attendant external evidence generated of that mailing), so too is an email deemed served “on the date it is sent.” Some individuals anticipate chicanery by members of the Bar with respect to the date pleadings and other documents are “sent.” It is respectfully suggested to this Court

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 80 of 185 that virtually every email system generates a record of the date and time, down to the minute, that an email is sent, and it is believed that such evidence of service is a vast improvement over United States mail delivery; there is no record of when a piece of mail is delivered to the post office unless a certified mail fee is paid.

The second portion of this subdivision addresses the problem of non­ delivery. The RJA proposes that the delivery of email is as successful, and probably significantly more successful, than the use of United States mail.

Nevertheless, some lawyers have expressed concern that email might not be received even though it is sent (just as United States mail is sometimes not received even though it is mailed). The current Florida Rules of Civil Procedure make no provision for what happens when regular mail is not delivered, but a series of common sense procedures have been established by the case law should that fact become known to the mailer.

Similarly, the second portion of this subdivision specifically provides that if a sender learns an email did not reach the address of the person to be served, the sender must immediately resend the email or deliver the document or pleading by any of the other means authorized by subdivision (b)(2). While all email systems do not presently give the sender a return receipt option, many do, and if a sender's system provides for such an option and no receipt is received, then the sender will be charged with knowing the email did not get delivered. Similarly, as is the case

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 81 of 185 with paper service, the sending attorney may learn an email does not get through any one of a hundred different normal communications that may occur between the sending attorney and the receiving attorney. Any of those sources of information will be sufficient to trigger the obligation to resend an email, just as they trigger it now with the obligation to resend a paper document.

Subdivision(b)(1)(D)(iii) provides that “email service is treated as service by mail for the computation of time.” While it may seem counterintuitive to the Court that a communication by email that is virtually instantaneous should entitle the recipient to five extra days to respond (as though it had been sent by regular mail), the provision was deliberately selected. After a great deal of thought, the Joint

Committee initially, and all of the rules committees of The Bar subsequently, have approved the concept that email service should be treated exactly like service by mail for the computation of time. In other words, despite the fact that email is delivered immediately, 24 hours a day, and that it will be deemed served on the date that it was sent, the recipient will still have the additional days currently provided for by the rules as though the document had been served by mail rather than by email. In civil practice, that would be five additional days, and in criminal practice, that would be three additional days.

The primary reason for this additional time was because there is no good reason to further accelerate the pace of the practice of law and it is consistent with

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 82 of 185 the system currently in place in the federal rules. Over the last 10 or 20 years, a lawyer’s day to day practice has significantly speeded up as modern technology causes things to happen faster and requires responses more quickly. Because there has been no outcry from the Bar that the delivery of responses to various pleadings needs to happen even more quickly, it was the opinion of the Joint Committee, and later the RJA and the other committees, that the recipient of email service would still benefit from the additional delivery time afforded to routine delivery by mail.

In addition to not desiring to speed up the process of professional life still further, there was another concern that, despite the fact that an email might be delivered immediately, it may not be observed or seen by the lawyer or his office staff immediately. The additional days for responses to emailed documents would provide ample opportunity for any office to establish procedures to insure that an email had been reviewed and evaluated.

Subdivision (b)(1)(E).

The mechanics of email service are designed to be simple. A document is served by email when it is attached to an email itself in .pdf format and sent to those lawyers and parties who have designated email addresses. The .pdf format was selected because it is universally available at no cost to lawyers and non- lawyers alike and because it is the currently widely accepted format for the transmission of documents. Furthermore, it provides an acceptable level of

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 83 of 185 security for documents as compared to documents delivered in other formats, such as Microsoft Word, which can be edited and changed. It is also the format approved by this Court for transmission of documents and is in use throughout the

United States in comparable systems.

The first portion of this subdivision directs that the subject line of an email that has documents attached to it shall start with the words “SERVICE OF COURT

DOCUMENT” so that the recipient will be aware that there is an email of particular importance. Some concern has been expressed that the selection of three required words in the subject line may attract the unhealthy attention of spammers.

It is acknowledged this could happen, but at this time the RJA believes this concern does not warrant any change to the current proposal. The RJA notes that of the hundreds of lawyers using email service voluntarily at this time, none have reported any such problem. In addition, the District Court of Appeal, First District, which has recently implemented electronic filing and service, and which currently has 2400 registered users, has reported learning of no such spamming problem.

That is not to say it could not conceivably happen, but there is simply no evidence that it will, or that it cannot be easily corrected if it does.

The second portion of this subdivision requires that the sender give additional information about the document, beyond that placed in the subject line,

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 84 of 185 in the body of the email itself to allow the recipient to correctly identify the attached document.

The third portion of this subdivision carries forward the “/s” signature format previously approved by this Court in other contexts. This is allowed on the emailed document to avoid printing and scanning the document, so long as the filed original of any such document or pleading has an original signature as required by the applicable rules of procedure.

Finally, the last portion of this rule limits the size of any email (with its attached documents) to a total of five megabytes (5MB). If an attached document or series of documents to be served, along with the covering email, are larger than that, then they need to be broken down into separate emails and sent separately, to ensure that no one email, along with all of the attachments thereto, exceeds five megabytes in size. This provision was placed in the rule because of concerns there are email systems in Florida that may have size restrictions on incoming emails.

The five megabyte limitation is the same size limitation utilized in most other courts using similar systems and was thought to be sufficiently small to escape the arbitrary settings of most size filters.

Subdivision (b)(2).

This subdivision essentially incorporates, verbatim, the original language of

Rule 1.080 allowing service of pleadings and other documents by a variety of

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 85 of 185 means. Because email service will be the mandatory means for virtually all pleadings by lawyers, this provision of the original Rule 1.080 will be used primarily by pro se individuals and by those few lawyers who are excused from email service.

The first sentence of this subdivision has been added to work in conjunction with the second sentence of subdivision (b)(1), which is designed to ensure an attorney may select a means of service from subdivision (b)(2), along with email service, and still get the benefit of the immediate delivery time or other characteristic of service by non-email means.

Subdivision (c),(d) and (e).

These subdivisions are incorporated from Rule 1.080 unchanged.

Subdivision (f).

This subdivision has been changed to reflect that email service is the first means of delivering pleadings and other documents for service.

Subdivision (g).

This subdivision is modified very slightly from Rule 1.080 to allow, but not require, clerks to serve notices and other documents by any means allowed in subdivision (b). Although attorneys are required to use email, clerks are simply allowed to use email if they are equipped to do so. Because clerks may not have

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 86 of 185 ready access to an attorney’s designation of his or her email address, it may be more difficult for clerks to email notices than it is for lawyers or judges.

Subdivision (h).

This subdivision has been specifically amended to authorize, but not require, the Court to utilize email service for any order or judgment that is sent to an attorney who has not been excused for email service or to any person not represented by an attorney who has opted into email service.

Conforming Amendments to Other Court Rules of Procedure

The following rules amendments are proposed to conform with proposed new Rule 2.516. The comments on this proposal of the Criminal Procedure Rules

Committee and Code and Rules of Evidence Committee are also included below.

Rules of Civil Procedure

Fla.R.Civ.P. 1.080 is deleted and a paragraph added that service must be made in accordance with Rule 2.516.

Rule 1.170(g) is amended to reflect relocation of the service rule to Rule

2.516.

Rule 1.351(b) is amended to include email service.

Rules 1.410(c), 1.440(c), 1.442(c)(2)(G), 1.510(d)(5), and 1.630(d)(5) are amended to reflect relocation of the service rule to Rule 2.516.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 87 of 185 The Court should note there are amendments to Rules 1.080, 1.351. 1.410, and 1.510 that were submitted in the committee’s cycle report and approved by the

Court in case number SC10-148. These amendments will become effective

January 1, 2011. In proposing Rule 2.516, the Rules of Judicial Administration

Committee took account of the pending amendments to Rule 1.080.

Rules of Judicial Administration

Rule 2.515(a) is amended to require an attorney’s current record Florida Bar address and primary and secondary email addresses, if any, on pleadings and other papers.

Rules of Criminal Procedure

Rule 3.030 is amended to conform to Rule 2.516.

Rule 3.070 is amended to include service by electronic mail.

Rule 3.852(c)(2) is amended to correct a cross-reference.

Committee Comment:

The Criminal Procedure Rules Committee recognizes the inevitability of electronic service and has proposed conforming amendments to its rules.

However, many concerns have been identified by the committee about the implementation of a rule mandating electronic service. The following summarizes the concerns raised by the committee:

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 88 of 185 A. Proof of service and time of service: The committee is concerned that it is often difficult to insure that service actually occurred. Electronic messages can be transmitted without necessarily being received, particularly with large government offices that have spam filters or county servers where electronic messages can sit without the sender or recipient being aware that they are there.

The date an electronic message is sent is also vague: is it when the sender clicks

“send” or when the mail server actually transmits the message to the recipient’s mail server? The additional time for service applicable to mail service does not solve this problem. Neither “Read Receipt” (confirmation that a recipient opened an email) nor “Delivery Receipt” (confirmation that the email was successfully transmitted to the recipient’s email server) are universally supported options.

B. Discovery: Proposed Rule 2.516 applies to all documents served after the initial pleading, and does not exempt written discovery, which can be voluminous.

Many small practitioners as well as large government offices are not set up for the volume of scanning and data storage necessary for emailing and retaining such volumes of material. It is also unclear whether documents to be served by email include photographs, which would either have very large file sizes or would require alteration of the original photograph resolution for emailing.

C. Format for email service: More specific formatting standards for the body of the email are needed in order to assist with future automation of routing,

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 89 of 185 printing, storing, etc. For example, the first line of the body of the email should identify the case number, the second line the date of service, the third line the court in which the proceeding is pending, the fourth line sender’s name and telephone number, the fifth line the names of the initial parties, the sixth and subsequent lines the titles of documents served with the email, one document name per line.

D. Technical Issues: Proposed Rule 2.516 sets a 5MB size limit. This may not be realistic. It is questionable whether the rule creates a viable fix with breaking large attachments up into smaller parts. Format issues for attachments are not specified. The rule should require that .pdfs be attached individually in their native state, and not be compressed into zip files in order to facilitate automated printing and storing.

E. Cost: The full cost of moving to electronic service is unknown.

Certainly, there are technology expenses (servers, scanners, etc.). However, there are also personnel and training expenses. Additional personnel would be needed simply to “man” the electronic mailboxes in big offices and to scan documents.

Training of personnel on how to “serve” pleadings would likewise be required.

The CPRC believes a broad pilot program or phase-in period should predate the move to mandatory electronic service. This would provide an opportunity to address problems before implementation statewide. Justice and liberty interests in criminal proceedings are too valuable and important to risk by moving forward too

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 90 of 185 rapidly in these untested waters. Furthermore, state attorney and public defender offices are suffering from chronic underfunding. A mandate to move forward with electronic service may well present an insurmountable burden on already limited resources. A pilot project and/or phase-in period would allow agencies to determine the cost and best practices for technology upgrades, personnel, and training, in order to adequately address the requirements of electronic service. It also would insure that dollars are not used on efforts that are not successful. The private sector is likewise experiencing financial hardships. The additional technology necessary to implement this rule may be beyond the ability of the small practitioner.

Florida Probate Rules

Rules 5.030 and 5.040 Rule History and Rule Reference lists are updated.

Rule 5.041 is amended to cross-reference and provide for service in accordance with Rule 2.516. The Rule History and Rule Reference lists are also updated.

Rule 5.060 Rule History and Rule Reference lists are updated.

Rule 5.120 is updated with a general service provision and the Rule History and Rule Reference lists are updated.

Rule 5.200 Rule History and Rule Reference lists are updated.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 91 of 185 Rules 5.340(d) and 5.342(c) are amended to remove the duplicative requirement of filing a proof of service for a document that includes a certificate of service as provided in Rule 2.516. If service of the inventory is by formal notice, then proof of service is filed in accordance with Rule 5.040(a)(5). The Rule

History and Rule Reference lists are updated.

Rules 5.350, 5.360, 5.370, 5.380, 5.385, 5.386, 5.400, 5.401, 5.402, 5.403,

5.405, and 5.406 Rule History and Rule Reference lists are updated.

Rule 5.407 is amended to make the possessive pronoun gender neutral in compliance with AOSC06-14. The Rule History and Rule Reference lists are updated.

Rules 5.430, 5.440, 5.460, 5.470, 5.475, 5.496, 5.498, 5.499, 5.510, 5.530,

5.620, 5.630, 5.650, 5.660, 5.670, 5.680, 5.690, 5.695, 5.696, and 5.700 Rule

History and Rule Reference lists are updated.

The Court should note there are amendments to Rules 5.030(b), (c) and

Committee Notes, 5.040(d) and Committee Notes, 5.041 and 5.060 Rule History and Statutory References, 5.200 (e) and Rule History, 5.340(a), (d)-(h) and Rule

History and Statutory References, 5.360 and 5.405 Rule History and Statutory

References, 5.406(c) and Rule History, 5.440 Title and Rule History, 5.470 Rule

History and Rule References, 5.496(b) and Rule History, and 5.696(b) and Rule

History that were submitted in the committee’s cycle report and approved by the

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 92 of 185 Court in case number SC10-171. These amendments will become effective

January 1, 2011.

Rules of Traffic Court

Rule 6.370 is amended to substitute “document” for “paper” to allow for service of materials other than paper. The rule is also amended to broaden the types of service available. The title of the rule is amended to allow for all types of service, except hand delivery.

Florida Small Claims Rules

Rules 7.050(a) and (b) are amended to require attorneys to provide, and allow unrepresented parties to provide, an email address on a statement of claim.

Rules 7.080(b) and (e) are amended to require attorneys to serve each other as provided in the Rules of Judicial Administration and to include email service as an option on the certificate of service.

The Court should note that there is an amendment to Rule 7.050 that was submitted in the committee’s cycle report and approved by the Court in case number SC10-144. This amendment will become effective January 1, 2011.

Rules of Juvenile Procedure

The Juvenile Court Rules Committee proposes to amend the service rules in each of the three parts of its rules, 8.085 (delinquency), 8.225 (dependency and termination of parental rights), and 8.635 (families and children in need of

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 93 of 185 services), rather than deleting existing language and adding a cross-reference to

Rule 2.516, because the committee believes that it will be more efficient and convenient for practitioners to only have to refer to one set of rules, rather than two. The language in the rule amendments was taken from the final version of

Rule 2.516.

Form 8.903, certificate of service, is amended to include email service.

Rules of Appellate Procedure

Rules 9.420(a), (c), and (d) are amended to incorporate reference to Rule

2.516 and remove conflicting provisions.

Family Law Rules of Procedure

Rules 12.040(c)–(e) are amended to require that a notice of limited appearance include email addresses and to provide that an unrepresented party may also designate email addresses.

Rules 12.080(a) and (c) are amended to require service in accordance with

Rule 2.516. Subdivision (c) contains a grammatical correction.

Rule 12.090 is amended to provide that email service is treated as service by mail for the computation of time.

Rule 12.170 is amended to provide for service under Rule 2.516.

Rule 12.285(b)(1)(B) is amended to add service of documents produced under mandatory disclosure by email.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 94 of 185 Rules 12.351 and 12.410 are amended to provide for service under Rule

2.516.

Rule 12.440(a) is amended to provide that service on parties in default must be in accordance with Rule 2.516.

Rules 12.510, 12.611(b)(3), 12.615(b), and 12.630 are amended to provide for service under Rule 2.516.

In Form 12.900(b), the certificate of service is amended to add email service and signature blocks are amended to add email addresses. The instructions are amended to advise users that service must be in accordance with Rule 2.516. ADA, grammatical, and style corrections have also been made throughout the forms.

In Form 12.900(c), the certificate of service is amended to add email service and signature blocks are amended to add email addresses. The instructions are amended to advise users that service must be in accordance with Rule 2.516.

In Form 12.900(d), the certificate of service is amended to add email service and signature blocks are amended to add email addresses. Instructions are amended to advise users that service must be in accordance with Rule 2.516..

In Form 12.900(e), the certificate of service is amended to add email service and signature blocks are amended to add email addresses. Instructions are amended to advise users that service must be in accordance with Rule 2.516. The title of the form is also corrected.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 95 of 185 In Forms 12.900(f), 12.900(g), 12.900(h), and 12.902(b), the certificates of service are amended to add email service and signature blocks are amended to add email addresses. The instructions are amended to advise users that service must be in accordance with Rule 2.516. The title of the form is also corrected.

In Forms 12.902(c) and 12.902(e), the certificates of service are amended to add email service and signature blocks are amended to add email addresses.

Instructions are amended to advise users that service must be in accordance with

Rule 2.516. An error in West’s Rules of Court – 2010 is also corrected.

Form 12.915 is amended to allow parties to designate both a mailing and email address.

In Forms 12.920(a), (b), and (c) and 12.930(a), the certificates of service are amended to add email service and signature blocks are amended to add email addresses. Instructions are amended to advise users that service must be in accordance with Rule 2.516.

In Form 12.930(b), the certificate of service is amended to add email service and signature blocks are amended to add email addresses. The instructions are amended to advise users that service must be in accordance with Rule 2.516. The title of the form is also corrected. Two errors in West’s Rules of Court – 2010 are also corrected.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 96 of 185 In Forms 12.930(c), 12.932, and 12.996(b) and (c), the certificates of service are amended to add email service and signature blocks are amended to add email addresses. Instructions are amended to advise users that service must be in accordance with Rule 2.516.

Code and Rules of Evidence

At its January 2010 meeting, the Code and Rules of Evidence Committee voted to approve proposed Fla. R. Jud. Admin. 2.516 in concept. The vote was 20­

6. The committee does not believe that the proposed rule has any impact on the

Code and Rules of Evidence.

The votes on the committees’ proposals are shown in Appendix A. The proposed amendments to the rules and forms are found in Appendix B (full-page format) and Appendix C (two-column format). The Board of Governors of the

Florida Bar approved this package of rules in September 2010 by a vote of 36-3.

The committees respectfully request that the Court amend the rules of procedure as outlined in this report.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 97 of 185 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 98 of 185

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 99 of 185 CERTIFICATE OF COMPLIANCE

I certify that this report was prepared in accordance with the font requirements of Fla. R. App. P. 9.210(a)(2).

I certify that this rule was read against West’s Florida Rules of Court (2010 Revised Edition).

Jodi Jennings, Liaison Rules of Judicial Administration Committee The Florida Bar 651 E. Jefferson St. Tallahassee, FL 32399 Florida Bar No.: 930880 850/561-5706

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 100 of 185 Filing # 61208533 E-Filed 08/31/2017 03:09:00 PM

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC17-1137

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION 2.430, 2.535, 2.560, AND 2.565

/

COMMENTS OF THE TRIAL COURT BUDGET COMMISSION

The Honorable Margaret O. Steinbeck, Chair of the Trial Court Budget

Commission (“Commission”), files on behalf of the Commission these comments

to proposed amendments to the Florida Rules of Judicial Administration that

require, among other provisions, the making and retention of an audio recording

for both the English and non-English portions of criminal and juvenile delinquency

proceedings, as specified in the above-captioned case. The Commission

respectfully seeks additional time to analyze the potential fiscal impact of the

proposed rule revisions.

Noting the potential fiscal impact of the portion of the proposal relating to

audio recording of applicable court interpreting events, the Rules of Judicial

Administration Committee (“Committee”) and the Court Interpreter Certification

Board (“Board”) recommended that, before the Supreme Court promulgates these

1

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 101 of 185

rules, additional analysis be conducted by the Commission. The Commission is grateful to the Committee and the Board for their attention to potential fiscal impacts to trial courts and their recognition of the role of the Commission, as provided in Rule of Judicial Administration 2.230, in overseeing the administration of trial court budgets.

The fiscal impact of the proposed audio recording requirement will be affected by factors including but not limited to:

1) The number of events in which an interpreter is appointed who is

registered (rather than being certified, language skilled, or provisionally

approved) for fewer than two years or is neither certified, language

skilled, provisionally approved, nor otherwise registered.

2) The technological solutions that are available to comply with the

requirement.

The responses to the survey sent to trial court representatives during the rule-drafting process, which resulted in the initial estimated implementation cost cited by the Committee and the Board of at least $1.1 million, contain helpful information. The responses also illustrate, however, that circuits contemplated using different technology solutions to implement the requirement. Additionally, there is wide disparity in currently available equipment, technology and personnel

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 102 of 185

support in the trial courts throughout Florida. The differences in technology solutions can produce significantly different costs.

The Commission sought guidance from representatives of the Committee and the Board in preparing these comments. Those discussions resulted in a suggestion from representatives of the Board that the Commission consider costing out solutions for recording solely the non-English portions of the applicable proceedings, as well as solutions for recording both the English and non-English portions.

In order to provide the Supreme Court with the most thorough fiscal analysis, the Commission recommends that it explore these and other issues with partner court committees such as the Commission’s Due Process Technology

Workgroup and the joint Due Process Workgroup that the Commission formed with the Commission on Trial Court Performance and Accountability. Therefore, the Commission respectfully seeks additional time to conduct its analysis and requests that the Supreme Court allow it to report back no later than December 31,

2017, before the Court promulgates these rules.

Respectfully submitted on August 31, 2017. s/ Hon. Margaret O. Steinbeck Hon. Margaret O. Steinbeck [email protected] Florida Bar Number 909815

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 103 of 185

Chair, Trial Court Budget Commission Twentieth Judicial Circuit Lee County Justice Center 1700 Monroe Street Fort Meyers, Florida 33901 (239) 533-9162

CERTIFICATE OF SERVICE

These comments have been served on the following people through the

Florida Courts E-Filing Portal on this the 31st day of August 2017:

Judson Lee Cohen Hon. J. Kevin Abdoney Chair Chair Rules of Judicial Administration Court Interpreter Certification Board Committee P.O. Box 9000 14125 N.W. 80th Avenue, Ste. 400 Drawer J165 Miami Lakes, Florida 33016-2350 Bartow, Florida 33831-9000 [email protected] [email protected]

Krys Godwin Melissa Hamilton Florida Bar Staff Liaison Staff Liaison Rules of Judicial Administration Court Interpreter Certification Board Committee Office of the State Courts 651 East Jefferson Street Administrator Tallahassee, Florida 32399-2300 500 South Duval Street [email protected] Tallahassee, Florida 32399-1900 [email protected]

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 104 of 185

CERTIFICATE OF COMPLIANCE

I certify that these comments were prepared in Microsoft Word 97 or higher and in compliance with the font requirements of Florida Rule of Appellate

Procedure 9.210(a)(2).

s/ Eric Maclure Eric Maclure [email protected] Florida Bar Number 27375 Staff Liaison Trial Court Budget Commission Office of the State Courts Administrator 500 South Duval Street Tallahassee, Florida 32399-1900 (850) 488-3733

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 105 of 185 Filing # 61207549 E-Filed 08/31/2017 03:00:50 PM

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC17-1137

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION 2.430, 2.535, 2.560, AND 2.565 ______/

PUBLIC COMMENT

COMES NOW the Honorable Frederick J. Lauten, Chief Judge of the Ninth

Judicial Circuit, and files this Public Comment on behalf of the Circuit concerning

the proposed amendments to rules 2.430, 2.535, 2.560 and 2.565 of the Rules of

Judicial Administration.

The Circuit is particularly concerned with both the fiscal, and to an even

greater extent, the operational implications of the proposed amendment to rule

2.560(e)(4). The amendment would require that in any criminal or juvenile

delinquency proceeding, a recording must be made for both the English and non-

English portions of the proceedings if an interpreter who has been registered for

less than two years is appointed or if an interpreter is appointed pursuant to

subdivision (e)(3) (Appointment in Exceptional Circumstances) of the rule.

The proposed amendment contemplates that all exchanges are to be recorded

thereby placing the Circuit in a difficult situation.1 Each instance of using the

services of an interpreter who has been registered for less than two years or who is 1 It is interesting to note that American Sign Language (ALS) is considered by many to be a foreign language. The proposed amendment would also require proceedings in which ALS is provided to be recorded if a non-registered interpreter is the only provider available.

Page 1 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 106 of 185 appointed pursuant to 2.560(e)(3) would require a recording be made. In the Ninth

Circuit, that would occur about once a day. In practice, just about all non-Spanish requests for interpreting result in the use of a non-certified, non-registered, or non- provisionally approved interpreter.

The Board and Committee assert that an amendment to rule 2.560(e)(4) is

necessary to ensure that the rights of non-English-speaking and limited-English- proficient court participants are not compromised. It proposes that audio recordings of the interpreted portions of proceedings be made, retained and are available to the same extent as any other matter routinely considered in the context of appellate or collateral review.

In an effort to protect both the rights of persons entitled to the appointment

of an interpreter as well as the integrity of the interpreted proceeding, the joint

workgroup recognized the importance of preserving the electronic recordings of

hearings. The Committee posits that for trial court and appellate review purposes,

preservation of both the English interpretation and the non-English language is

necessary. Additionally, the joint workgroup concludes that audio recordings

required by rule 2.560(e)(4) (as amended) should be distinguished from audio

recordings made by court reporters in the normal course of business, and

recommends that the recordings be preserved even after a transcript is prepared.

The prevention and ultimate preservation of inaccurate interpretation and the

Page 2 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 107 of 185 consequential harm to court participants is a worthy endeavor that no doubt demands to be addressed. In order that any translation error be preserved for appellate or collateral review, the joint workgroup determined that audio recordings of both the English and non-English portions of proceedings involving certain lesser-qualified interpreters should be made and retained.2

Perhaps in recognition of the immense burden such a requirement would impose on the circuits, the joint workgroup agreed to limit the requirement of making and retaining audio recordings to situations in which the appointed interpreter has yet to demonstrate minimum oral competence to the satisfaction of the Board in both the English and non-English language. Therefore, the recording requirement applies to cases in which a non-registered interpreter is used or in which the interpreter has been registered for less than two years.

The Ninth Circuit is greatly concerned not just about the fiscal impact of the proposal but the logistical issues the change would create. This change would require a significant expenditure of dollars. But beyond the purely fiscal impact of the ruke, the change in procedure would add significant logistical and technical burdens. The proposal creates not only a technical challenges, but operational and

2 A unique concern about recording these types of conversations, occurs during in-jail first appearances because the interpreter is not only interpreting the judge’s words to the defendant but is also interpreting any exchanges between the defendant and the assistant public defender. If these conversations were required to be recorded, a violation of the attorney/client privilege could obviously occur. Another concern arises with any high-volume, quick paced court proceeding such as when pleas are taken, arraignments are held, and even at trial when the court calls a case, then addresses four or five other matters before starting trial. The demand on an already overworked court reporting staff to annotate such recordings would be impossible without the resources to add additional positions to handle the volume. Page 3 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 108 of 185 logistical mandates that would require additional expenditures to meet staffing needs. The ability to capture the data successfully is only a small component of a very large undertaking.

Fiscal/Personnel Impact: The preliminary survey results of the 20 circuits

indicates a statewide estimate of implementation costs of at least $1.1 million to

capture the prospective audio recordings of select interpreted court proceedings.

Merely capturing the information is only a small part of the problem the

amendment is trying to solve.

The proposed amendments will cause a dramatic increase in personnel, equipment, and storage costs for the Circuit. The monetary cost for technological and staff support is significant. The Ninth Circuit is in a better position, technically, than many of the circuits to successfully implement such a process and yet even for this Circuit it would cost a prohibitive sum of money, as well as place a significant strain on precious staff resources to extract information and maintain the recordings.

Compliance with the proposed amendment would require an upgrade to our

existing system by adding another channel (specific to the Ninth Circuit 4 channels

to 8 channels); it would require additional server space, as well as an upgrade of

mixers for additional outputs. This Circuit alone has sixty (60) venues where

interpreting occurs that would require a re-build. Estimates are that such an

Page 4 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 109 of 185 upgrade would require expending $100,000.00 to $150,000.00. Furthermore, a wireless system must be encrypted which could add an additional cost factor of

10x. This expenditure on technology upgrades is not currently budgeted and even if the fiscal resources were readily available, it would take six months to a year to complete the upgrade.

We struggle with where the additional recording channel would be placed.

We wonder what department would operate and maintain the recording; the court

reporting department, the court interpreting department, or the IT department?

Each one of these possibilities pose their own unique set of complications. The

recording of all interpreter exchanges will require some level of annotation from

the court reporting department to properly catalog and maintain recordings. At this

time, the Circuit cannot begin to accurately assess the additional annotation burden

that would be placed on the court reporting department if all interpreter exchanges

must be recorded. Digital court reporters who monitor and annotate four

concurrent proceedings, are already stretched to the limit. By adding felony trials

to the mix, the number of digital court reporters would have to be increased.

Even if the recording and maintenance of all interpreter exchanges could be accomplished, we still face the systems upgrade issue and the man-power to monitor the recordings. We also would have to address who will coordinate calendars between the court interpreting department and the reporting department.

Page 5 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 110 of 185 Additionally, we must decide who will physically make a determination if an interpreter is being used who requires recording under the proposed amendment, who will notify court reporting when the system needs to be turned on and off, who will perform even the most basic level of annotation and who will archive and preserve the recordings in manner where retrieval is possible.

If the additional recording channel is to be operated and maintained

by a department other than court reporting, such as the interpreting department or

the IT department, no annotation of any kind will occur. Consequently, a

dedicated server will exist with volumes of recorded data and no way to retrieve a

specific portion upon request other than to spend hours reviewing all data. The

same concern arises with a public records request. Who would review the

recording to determine what could be released as a public record and how would

that determination be made? The number of staff hours spent reviewing audio that

might have only a basic level of annotation would be time-consuming and

extraordinarily burdensome.

In sum, the proposed amendment to rule 2.560(e)(4) as drafted raises

significant technical, logistical and operational issues. A complete and thorough

analysis of the technical obstacles that must be surmounted, as well as an in-depth

analysis of the operational impact this amendment would have is warranted.

We cannot overstate the importance of further, detailed and comprehensive

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 111 of 185 analysis prior to the Court promulgating this proposed amendment. The Ninth

Circuit would welcome the opportunity to participate in any meaningful way to ensure all affected components of the Court are considered and addressed.

Respectfully submitted,

/s/ Frederick J. Lauten Frederick J. Lauten Chief Judge Ninth Judicial Circuit Orange County Courthouse 425 N. Orange Ave., Suite 2010 Orlando, FL 32801 (407) 836-2009 [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished, via electronic mail, to the following on this 31st day of August, 2017:

Page 7 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 112 of 185 Judson Lee Cohen Krys Godwin Chair, Rules of Judicial Bar Staff Liaison Administration Committee 651 E. Jefferson Street 14125 NW 80th Ave, Ste. 400 Tallahassee, FL 32399-2300 Miami Lakes, FL 33016-2350 [email protected] [email protected]

Judge J. Kevin Abdoney Melissa Hamilton Chair, Court Interpreter Board Staff Liaison Certification Board 500 South Duval St. P.O. Box 900 Tallahassee, FL 32399 Drawer J165 [email protected] Bartow, FL 33831-9000 [email protected]

/s/ Jennifer Hough Judicial Assistant

Page 8 of 8

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 113 of 185 Godwin, Krys

From: Leen, Craig Sent: Tuesday, June 21, 2016 9:41 AM To: [email protected]; Godwin, Krys Subject: RJAC Referral

Judge Stephens and Krys,

I hope you both are doing well. I would like to make the following referral for the upcoming year:

Name of RJA: I would like the Committee to consider recommending a change to the name of the Rules of Judicial Administration to incorporate the role of this rule set in establishing the rules of general practice/applicability. I am an adjunct professor at two law schools, in addition to being a government attorney, and have repeatedly found that students are unaware of the purpose or existence of the Rules of Judicial Administration (unfortunately, many practitioners seem to be unaware of the purpose or existence of the rule set as well). To the extent they are aware, they believe the focus is on judicial administration. I believe a name change would help remedy this issue and more accurately reflect the important purposes that this rule set accomplishes. I would propose the following name: Rules of General Practice and Judicial Administration.

Craig E. Leen, City Attorney Board Certified by the Florida Bar in City, County and Local Government Law City of Coral Gables 405 Biltmore Way Coral Gables, Florida 33134 Phone: (305) 460‐5218 Fax: (305) 460‐5264 Email: [email protected]

Please Note: Florida has a very broad Public Records Law. Most written communications to or from State and Local Officials regarding State or Local business are public records available to the public and media upon request. Your email communications may therefore be subject to public disclosure.

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 114 of 185 Godwin, Krys

From: Telfer, Heather Sent: Tuesday, March 08, 2016 8:36 AM To: Godwin, Krys Subject: RJA 2.110

Good Morning,

I think that RJA should review Rule 2.110. It states that it supersedes any conflicting statutes and I’m not sure that’s true.

RULE 2.110. SCOPE AND PURPOSE

These rules, cited as “Florida Rules of Judicial Administration” and abbreviated as “Fla. R. Jud. Admin.,” shall take effect at 12:01 a.m. on July 1, 1979. They shall apply to administrative matters in all courts to which the rules are applicable by their terms. The rules shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable. These rules shall supersede all conflicting rules and statutes.

Thanks,

Heather

Heather S. Telfer Attorney Liaison - Rules The Florida Bar 850-561-5702 [email protected]

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 115 of 185 Godwin, Krys

From: Sanchez, Eduardo (USAFLS) Sent: Wednesday, January 11, 2017 5:26 PM To: Godwin, Krys Subject: RE: Small Claims rule committee concern to RJA regarding Confidential Information Rule

From: Michael Debski [mailto:[email protected]] Sent: Tuesday, January 10, 2017 9:37 AM To: Sanchez, Eduardo (USAFLS) Subject: Small Claims rule committee concern to RJA regarding Confidential Information Rule

Confidential information rule requires the truncation of phone number when it is required by the small claims rules 7.050 (b).

Thank you for your time and consideration in this matter.

Michael Thiel Debski Debski & Associates, P.A. 4417 Beach Boulevard, Suite 400 Jacksonville, Florida 32207 Email: [email protected] Phone (904) 425-0901 Toll Free (800) 733-0717 Facsimile (904)- 425-0906

FLORIDA | GEORGIA

The information in this email is confidential and may also be attorney-client privileged. The information is intended only for the use of the individual or entity to whom it is addressed. If you are not the intended recipient, or the agent or employee responsible for delivering it to the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received the email in error, please immediately notify us by telephone, delete the email and if printed return the original message to us at the address above via the U.S. Postal service.

THIS COMMUNICATION IS FROM A DEBT COLLECTOR AND ANY INFORMATION OBTAINED MAY BE USED FOR THAT PURPOSE.

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 116 of 185 Godwin, Krys

From: Thomas Hall Sent: Monday, August 07, 2017 7:13 PM To: Leen, Craig; Godwin, Krys Subject: Fwd: confidentiality of injunctions - new law interpretation

Craig,

I got this from an attorney who works for a clerk's office and deals with such issues regularly. It was addressed to other attorneys who work in clerk's offices who also deal with such issues.

I think this makes some good points that need to be considered by the committee on the call tomorrow. Sorry it is so late but I just got it and am on the west coast all week.

I am hoping this can get posted on the committee's web page before the meeting.

Tom

Sent from my iPhone 7+

Begin forwarded message:

Confidentiality of injunctions ‐ new law interpretation

Ladies and gentlemen:

We have new issues with §119.0714 pertaining to the confidentiality of injunctions. In ______, we are not making dismissed petitions confidential without a court order pending a change to Rule 2.420. However, because of a conversation with our chief judge and looking ahead to the day when we might be required to keep the petitions confidential under R. 2.420, I have two questions.

First question. The statutory language refers to petitions that have been dismissed being made confidential. Our judiciary routinely uses a Fla. S.Ct. form titled Order Denying Petition for Injunction for Protection Against …. This order is entered when the judge reviews the petition in chambers without a hearing and denies the petition based on the information in the petition. A strict reading of the new statutory language provides for dismissed petitions being made confidential, but not denied petitions. Yet these circumstances seem to be exactly the circumstances in which the legislature envisioned meritless petitions being made confidential. How are your offices treating petitions where the order denies the petition?

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 117 of 185 Second question. The statutory language refers to petitions that are “dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued . . . .” The Fla. S.Ct. form for Order of Dismissal of Temporary Injunction for Protection Against . . . is the form our judges use at the hearing for dismissing a petition and, in effect, dismissing any temporary injunction that was entered. The form goes on to provide as option c for the reason for dismissal, “The evidence presented is insufficient . . .,” which seems to match up with the statutory language concerning the sufficiency of the petition. The statutory language refers to dismissal of a petition without an injunction being issued ‐‐ it does not specify whether it is referring to a temporary injunction, permanent injunction, or both. The form for the order obviously envisions a dismissal of the petition after a temporary injunction was entered based on the title of the form. So, if an Order of Dismissal of Temporary Injunction for Protection is entered and option c (insufficient evidence) is marked, is that the type of order that would warrant making the petition confidential under §119.0714? It seems to me like it should be, but that result requires interpreting the language of the statute to be referring to permanent injunctions only and not include temporary injunctions. Again, how are your offices applying this language (or how do you intend to apply it if R. 2.420 is revised)?

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

2 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 118 of 185

July 31, 2017

The Honorable Jorge Labarga, Chief Justice Florida Supreme Court 500 South Duval Street Tallahassee, Florida 32399-1925

Dear Chief Justice Labarga:

I am writing you on behalf the Florida Court Clerks and Comptrollers (FCCC) asking your immediate assistance in addressing a critical, very time-sensitive problem facing all the Clerks of this state. During the last regular legislative session, the Legislature passed three new statutes creating new exemptions to Florida’s public record laws. For each new exemption, it is apparent to FCCC that the Legislature intended these exemptions to apply even when the records are part of a court file. Those exemptions went into effect July 1, 2017.

Clerks are now faced with a dilemma. If Clerks know the confidential information set forth in these new statutes is contained in a court file, do they release the information if requested, clearly contrary to what the Legislature intended, or do they wait until these three items are added to Rule 2.420 of the Rules of Judicial Administration before keeping them confidential? The Court’s fairly recent opinions in In re Amendments to Florida Rule of Judicial Administration 2.420, 68 So.3d 228 (Fla. 2011) and In re Amendments to Florida Rule of Judicial Administration 2.420, 124 So.3d 819 (Fla. 2013) suggest the latter, but if Clerks release the information and this Court later determines that these exemptions should have been be added to Rule 2.420, the confidential information will be forever available to the public. If they do not release it, Clerks may be (although we do not believe they should be) subject to an attorney’s fee award for protecting information that should have been released. Although Clerks strongly support public records access and, in fact, champion that cause regularly, FCCC believes, that under these specific, limited circumstances, and until the Court has had an opportunity to fully consider this important issue, any error should be made on the side of protecting the extremely sensitive confidential information.

FCCC, therefore, respectfully requests that you enter an administrative order directing that Clerks not release information covered by these new exemptions, if Clerks become aware of it, until this Court has had a chance to consider the legal issues about whether Rule 2.420 should be amended. If it turns out that ultimately this information is not added to the list of information Clerks are required to designate and maintain confidential pursuant to Rule 2.420, then the information will be made available at that time and the only harm will be delay. No real harm will occur. The three new exemptions are:

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 119 of 185 Chief Justice Jorge Labarga July 31, 2017 Page Two

• Ch. 2017-11 Laws of Florida provides personal identifying information of a witness to a murder remains confidential and exempt for a specified period. Section 3 specifically provides this to apply to court records. • Chapter 2017-14 Laws of Florida provides petitions for certain protective injunctions that are dismissed in certain circumstances are exempt from public records pursuant to s. 119.07(1) and s. 24(a), Art. I of the State Constitution. • Chapter 2017-25 Laws of Florida provides petitions for involuntary assessment and stabilization, court orders, related records and personal identifying information regarding substance abuse impaired persons is exempt from public records pursuant to s.119.071(1) and s. 24(a), Art. I of the State Constitution.

It is our understanding that the new statutes have been referred to the Rules of Judicial Administration Committee under the fast track procedure established by this Court and the Bar a number of years ago to deal with this sort of issue. Based on experience from previous years, however, by the time it goes to the rules committee, the Board of Governors and this Court, it will likely be January before the Court can put an amended rule in place. During that time, information the Legislature has determined should be protected will be exposed

Finally, we would like the opportunity to discuss with you some long-term solutions to this issue because it is highly likely to occur again after every legislative session. We will make FCCC representatives available at your earliest convenience. We sincerely appreciate your consideration of this matter and if you need any additional information, please let us know.

Respectfully,

Marcia M. Johnson President Florida Court Clerks & Comptrollers

cc: Judson L. Cohen, Chair Rules of Judicial Administration Committee

The Honorable Judge Rodolfo A. Ruiz, II, Chair Civil Procedure Rules Committee

John A. Tomasino, Clerk of Court Florida Supreme Court

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 120 of 185 CHAPTER 2017-11

Committee Substitute for Committee Substitute for House Bill No. 111

An act relating to public records; amending s. 119.011, F.S.; providing that the personal identifying information of a witness to a murder remains confidential and exempt for a specified period; amending s. 119.071, F.S.; providing an exemption from public records requirements for criminal intelligence or criminal investigative information that reveals the personal identifying information of a witness to a murder for a specified period; authorizing specified entities and parties to receive the informa- tion; providing for future legislative review and repeal of the exemption; amending s. 119.0714, F.S.; providing that the public records exemption applies to personal identifying information of a witness to a murder that is made part of a court file; providing a statement of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraph (c) of subsection (3) of section 119.011, Florida Statutes, is amended to read:

119.011 Definitions.—As used in this chapter, the term:

(3)

(c) “Criminal intelligence information” and “criminal investigative information” shall not include:

1. The time, date, location, and nature of a reported crime.

2. The name, sex, age, and address of a person arrested or of the victim of a crime except as provided in s. 119.071(2)(h).

3. The time, date, and location of the incident and of the arrest.

4. The crime charged.

5. Documents given or required by law or agency rule to be given to the person arrested, except as provided in s. 119.071(2)(h) or (2)(m), and, except that the court in a criminal case may order that certain information required by law or agency rule to be given to the person arrested be maintained in a confidential manner and exempt from the provisions of s. 119.07(1) until released at trial if it is found that the release of such information would:

a. Be defamatory to the good name of a victim or witness or would jeopardize the safety of such victim or witness; and 1 CODING:OctoberRules 13,Words of 2017 Judicial stricken Administrationare deletions; words Meeting underlinedPage Agenda 121 are of additions. 185 Ch. 2017-11 LAWS OF FLORIDA Ch. 2017-11

b. Impair the ability of a state attorney to locate or prosecute a codefendant.

6. Informations and indictments except as provided in s. 905.26.

Section 2. Paragraph (m) is added to subsection (2) of section 119.071, Florida Statutes, to read:

119.071 General exemptions from inspection or copying of public records.—

(2) AGENCY INVESTIGATIONS.—

(m)1. Criminal intelligence information or criminal investigative infor- mation that reveals the personal identifying information of a witness to a murder, as described in s. 782.04, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for 2 years after the date on which the murder is observed by the witness. A criminal justice agency may disclose such information:

a. In the furtherance of its official duties and responsibilities.

b. To assist in locating or identifying the witness if the agency believes the witness to be missing or endangered.

c. To another governmental agency for use in the performance of its official duties and responsibilities.

d. To the parties in a pending criminal prosecution as required by law.

2. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 3. Paragraph (h) of subsection (1) of section 119.0714, Florida Statutes, is amended to read:

119.0714 Court files; court records; official records.—

(1) COURT FILES.—Nothing in this chapter shall be construed to exempt from s. 119.07(1) a public record that was made a part of a court file and that is not specifically closed by order of court, except:

(h) Criminal intelligence information or criminal investigative informa- tion that is confidential and exempt as provided in s. 119.071(2)(h) or (2)(m).

Section 4. The Legislature finds that it is a public necessity that personal identifying information of a witness to a murder, as described in s. 782.04, Florida Statutes, be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution for 2 years after the date on which the murder is observed by the witness. The judicial system 2 CODING:OctoberRules Words 13, of 2017stricken Judicial are Administration deletions; words MeetingunderlinedPage Agenda are 122 additions. of 185 Ch. 2017-11 LAWS OF FLORIDA Ch. 2017-11

cannot function without the participation of witnesses. Complete coopera- tion and truthful testimony of witnesses is essential to the determination of the facts of a case. The public disclosure of personal identifying information of a witness to a murder could have an undesirable chilling effect on witnesses stepping forward and providing their eyewitness accounts of murders. A witness to a murder may be unwilling to cooperate fully with law enforcement officers if the witness knows his or her personal identifying information can be made publicly available. A witness may be less likely to call a law enforcement officer and report a murder if his or her personal identifying information is made available in connection with the murder that is being reported or under investigation. The Legislature further finds that a witness could become the subject of intimidation tactics or threats by the perpetrator of the murder if the witness’s personal identifying informa- tion is publicly available. For these reasons, the Legislature finds that it is a public necessity that the personal identifying information of a witness to a murder, as described in s. 782.04, Florida Statutes, be made confidential and exempt from public records requirements.

Section 5. This act shall take effect July 1, 2017. Approved by the Governor May 9, 2017. Filed in Office Secretary of State May 9, 2017.

3 CODING:OctoberRules 13,Words of 2017 Judicial stricken Administrationare deletions; words Meeting underlinedPage Agenda 123 are of additions. 185 CHAPTER 2017-14

Committee Substitute for House Bill No. 239

An act relating to public records; amending s. 119.0714, F.S.; providing an exemption from public records requirements for petitions, and the contents thereof, for certain protective injunctions that are dismissed in certain circumstances; providing a statement of public necessity; provid- ing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraph (k) is added to subsection (1) of section 119.0714, Florida Statutes, to read: 119.0714 Court files; court records; official records.—

(1) COURT FILES.—Nothing in this chapter shall be construed to exempt from s. 119.07(1) a public record that was made a part of a court file and that is not specifically closed by order of court, except: (k)1. A petition, and the contents thereof, for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued on or after July 1, 2017, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 2. A petition, and the contents thereof, for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued before July 1, 2017, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution only upon request by an individual named in the petition as a respondent. The request must be in the form of a signed, legibly written request specifying the case name, case number, document heading, and page number. The request must be delivered by mail, facsimile, or electronic transmission or in person to the clerk of the court. A fee may not be charged for such request.

Section 2. The Legislature finds that it is a public necessity that a petition, and the contents thereof, for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued be made exempt from s. 119.07(1), 1 CODING:OctoberRules 13,Words of 2017 Judicial stricken Administrationare deletions; words Meeting underlinedPage Agenda 124 are of additions. 185 Ch. 2017-14 LAWS OF FLORIDA Ch. 2017-14

Florida Statutes, and s. 24(a), Article I of the State Constitution. The Legislature finds that the existence of, and the unverified allegations contained in, such a petition may be defamatory to an individual named in it and cause unwarranted damage to the reputation of such individual. The Legislature further finds that removing such a record from public disclosure is the sole means of protecting the reputation of such an individual. Section 3. This act shall take effect July 1, 2017. Approved by the Governor May 9, 2017.

Filed in Office Secretary of State May 9, 2017.

2 CODING:OctoberRules Words 13, of 2017stricken Judicial are Administration deletions; words MeetingunderlinedPage Agenda are 125 additions. of 185 CHAPTER 2017-25

Committee Substitute for Committee Substitute for Senate Bill No. 886

An act relating to public records; creating s. 397.6760, F.S.; providing an exemption from public records requirements for petitions for involuntary assessment and stabilization, court orders, related records, and personal identifying information regarding substance abuse impaired persons; providing exceptions authorizing the release of such petitions, orders, records, and identifying information to certain persons and entities; providing applicability; prohibiting a clerk of court from publishing personal identifying information on a court docket or in a publicly accessible file; providing for retroactive application; providing for future legislative review and repeal of the exemption; providing a statement of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Section 397.6760, Florida Statutes, is created to read:

397.6760 Court records; confidentiality.—

(1) All petitions for involuntary assessment and stabilization, court orders, and related records that are filed with or by a court under this part are confidential and exempt from s. 119.071(1) and s. 24(a), Art. I of the State Constitution. Pleadings and other documents made confidential and exempt by this section may be disclosed by the clerk of the court, upon request, to any of the following:

(a) The petitioner.

(b) The petitioner’s attorney.

(c) The respondent.

(d) The respondent’s attorney.

(e) The respondent’s guardian or guardian advocate, if applicable.

(f) In the case of a minor respondent, the respondent’s parent, guardian, legal custodian, or guardian advocate.

(g) The respondent’s treating health care practitioner.

(h) The respondent’s health care surrogate or proxy.

(i) The Department of Children and Families, without charge. 1 CODING:OctoberRules 13,Words of 2017 Judicial stricken Administrationare deletions; words Meeting underlinedPage Agenda 126 are of additions. 185 Ch. 2017-25 LAWS OF FLORIDA Ch. 2017-25

(j) The Department of Corrections, without charge, if the respondent is committed or is to be returned to the custody of the Department of Corrections from the Department of Children and Families.

(k) A person or entity authorized to view records upon a court order for good cause. In determining if there is good cause for the disclosure of records, the court must weigh the person or entity’s need for the information against potential harm to the respondent from the disclosure.

(2) This section does not preclude the clerk of the court from submitting the information required by s. 790.065 to the Department of Law Enforce- ment.

(3) The clerk of the court may not publish personal identifying informa- tion on a court docket or in a publicly accessible file.

(4) A person or entity receiving information pursuant to this section shall maintain that information as confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(5) The exemption under this section applies to all documents filed with a court before, on, or after July 1, 2017.

(6) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 2. The Legislature finds that it is a public necessity that petitions for involuntary assessment and stabilization and related court orders and records that are filed with or by a court under part V of chapter 397, Florida Statutes, and the personal identifying information of a substance abuse impaired person which is published on a court docket and maintained by the clerk of the court under part V of chapter 397, Florida Statutes, be made confidential and exempt from disclosure under s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution. A person’s health and sensitive, personal information regarding his or her actual or alleged substance abuse impairment are intensely private matters. The media have obtained, and published information from, such records without the affected person’s consent. The content of such records or personal identifying information should not be made public merely because they are filed with or by a court or placed on a docket. Making such petitions, orders, records, and identifying information confidential and exempt from disclosure will protect such persons from the release of sensitive, personal information which could damage their and their families’ reputations. The publication of personal identifying information on a physical or virtual docket, regardless of whether any other record is published, defeats the purpose of protections otherwise provided. Further, the knowledge that such sensitive, personal information is subject to disclosure could have a chilling 2 CODING:OctoberRules Words 13, of 2017stricken Judicial are Administration deletions; words MeetingunderlinedPage Agenda are 127 additions. of 185 Ch. 2017-25 LAWS OF FLORIDA Ch. 2017-25 effect on a person’s willingness to seek out and comply with substance abuse treatment services.

Section 3. This act shall take effect July 1, 2017. Approved by the Governor May 23, 2017.

Filed in Office Secretary of State May 23, 2017.

3 CODING:OctoberRules 13,Words of 2017 Judicial stricken Administrationare deletions; words Meeting underlinedPage Agenda 128 are of additions. 185 RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF JUDICIAL BRANCH RECORDS

(a) Scope and Purpose. Subject to the rulemaking power of the Florida Supreme Court provided by article V, section 2, Florida Constitution, the following rule shall govern public access to and the protection of the records of the judicial branch of government. The public shall have access to all records of the judicial branch of government, except as provided below. Access to all electronic and other court records shall be governed by the Standards for Access to Electronic Court Records and Access Security Matrix, as adopted by the supreme court in Administrative Order AOSC14-19 or the then-current Standards for Access. Remote access to electronic court records shall be permitted in counties where the supreme court’s conditions for release of such records are met.

(b) Definitions.

(1) “Records of the judicial branch” are all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity and consist of:

(A) “court records,” which are the contents of the court file, including the progress docket and other similar records generated to document activity in a case, transcripts filed with the clerk, documentary exhibits in the custody of the clerk, and electronic records, videotapes, or stenographic tapes of depositions or other proceedings filed with the clerk, and electronic records, videotapes, or stenographic tapes of court proceedings; and

(B) “administrative records,” which are all other records made or received pursuant to court rule, law, or ordinance, or in connection with the transaction of official business by any judicial branch entity.

(2) “Judicial branch” means the judicial branch of government, which includes the state courts system, the clerk of court when acting as an arm of the court, The Florida Bar, the Florida Board of Bar Examiners, the Judicial Qualifications Commission, and all other entities established by or operating under the authority of the supreme court or the chief justice.

(3) “Custodian.” The custodian of all administrative records of any court is the chief justice or chief judge of that court, except that each judge is the

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 129 of 185 custodian of all records that are solely within the possession and control of that judge. As to all other records, the custodian is the official charged with the responsibility for the care, safekeeping, and supervision of such records. All references to “custodian” mean the custodian or the custodian’s designee.

(4) “Confidential,” as applied to information contained within a record of the judicial branch, means that such information is exempt from the public right of access under article I, section 24(a) of the Florida Constitution and may be released only to the persons or organizations designated by law, statute, or court order. As applied to information contained within a court record, the term “exempt” means that such information is confidential. Confidential information includes information that is confidential under this rule or under a court order entered pursuant to this rule. To the extent reasonably practicable, restriction of access to confidential information shall be implemented in a manner that does not restrict access to any portion of the record that is not confidential.

(5) “Affected non-party” means any non-party identified by name in a court record that contains confidential information pertaining to that non-party.

(6) “Filer” means any person who files a document in court records, except “filer” does not include the clerk of court or designee of the clerk, a judge, magistrate, hearing officer, or designee of a judge, magistrate or hearing officer.

(c) Confidential and Exempt Records. The following records of the judicial branch shall be confidential:

(1) Trial and appellate court memoranda, drafts of opinions and orders, court conference records, notes, and other written materials of a similar nature prepared by judges or court staff acting on behalf of or at the direction of the court as part of the court’s judicial decision-making process utilized in disposing of cases and controversies before Florida courts unless filed as a part of the court record;

(2) Memoranda or advisory opinions that relate to the administration of the court and that require confidentiality to protect a compelling governmental interest, including, but not limited to, maintaining court security, facilitating a criminal investigation, or protecting public safety, which cannot be adequately protected by less restrictive measures. The degree, duration, and manner of confidentiality imposed shall be no broader than necessary to protect the compelling governmental interest involved, and a finding shall be made that no

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 130 of 185 less restrictive measures are available to protect this interest. The decision that confidentiality is required with respect to such administrative memorandum or written advisory opinion shall be made by the chief judge;

(3) (A) Complaints alleging misconduct against judges until probable cause is established;

(B) Complaints alleging misconduct against other entities or individuals licensed or regulated by the courts, until a finding of probable cause or no probable cause is established, unless otherwise provided. Such finding should be made within the time limit set by law or rule. If no time limit is set, the finding should be made within a reasonable period of time;

(4) Periodic evaluations implemented solely to assist judges in improving their performance, all information gathered to form the bases for the evaluations, and the results generated therefrom;

(5) Only the names and qualifications of persons applying to serve or serving as unpaid volunteers to assist the court, at the court’s request and direction, shall be accessible to the public. All other information contained in the applications by and evaluations of persons applying to serve or serving as unpaid volunteers shall be confidential unless made public by court order based upon a showing of materiality in a pending court proceeding or upon a showing of good cause;

(6) Copies of arrest and search warrants and supporting affidavits retained by judges, clerks, or other court personnel until execution of said warrants or until a determination is made by law enforcement authorities that execution cannot be made;

(7) All records made confidential under the Florida and United States Constitutions and Florida and federal law;

(8) All records presently deemed to be confidential by court rule, including the Rules for Admission to the Bar, by Florida Statutes, by prior case law of the State of Florida, and by the rules of the Judicial Qualifications Commission;

(9) Any court record determined to be confidential in case decision or court rule on the grounds that

(A) confidentiality is required to

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 131 of 185 (i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;

(ii) protect trade secrets;

(iii) protect a compelling governmental interest;

(iv) obtain evidence to determine legal issues in a case;

(v) avoid substantial injury to innocent third parties;

(vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed;

(vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law;

(B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A); and

(C) no less restrictive measures are available to protect the interests set forth in subdivision (A).

(10) The names and any identifying information of judges mentioned in an advisory opinion of the Judicial Ethics Advisory Committee.

(d) Procedures for Determining Confidentiality of Court Records.

(1) The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of this rule. The following information shall be maintained as confidential:

(A) information described by any of subdivisions (c)(1) through (c)(6) of this rule; and

(B) except as provided by court order, information subject to subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 132 of 185 Constitution as specifically stated in any of the following statutes or as they may be amended or renumbered:

(i) Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, neglect, and abandonment. §§ 39.0132(3), 39.0132(4)(a), Fla. Stat.

(ii) Adoption records. § 63.162, Fla. Stat.

(iii) Social Security, bank account, charge, debit, and credit card numbers. § 119.0714(1)(i)–(j), (2)(a)–(e), Fla. Stat. (Unless redaction is requested pursuant to § 119.0714(2), Fla. Stat., this information is exempt only as of January 1, 2012.)

(iv) HIV test results and the identity of any person upon whom an HIV test has been performed. § 381.004(2)(e), Fla. Stat.

(v) Records, including test results, held by the Department of Health or its authorized representatives relating to sexually transmissible diseases. § 384.29, Fla. Stat.

(vi) Birth records and portions of death and fetal death records. §§ 382.008(6), 382.025(1), Fla. Stat.

(vii) Information that can be used to identify a minor petitioning for a waiver of parental notice when seeking to terminate pregnancy. § 390.01116, Fla. Stat.

(viii) Clinical records under the Baker Act. § 394.4615(7), Fla. Stat.

(ix) Records of substance abuse service providers which pertain to the identity, diagnosis, and prognosis of and service provision to individuals., § 397.501(7), Fla. Stat., and all petitions, court orders, and related records for involuntary assessment and stabilization of an individual, § 397.6760, Fla. Stat.

(x) Clinical records of criminal defendants found incompetent to proceed or acquitted by reason of insanity. § 916.107(8), Fla. Stat.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 133 of 185 (xi) Estate inventories and accountings. § 733.604(1), Fla. Stat.

(xii) The victim’s address in a domestic violence action on petitioner’s request. § 741.30(3)(b), Fla. Stat.

(xiii) Protected information regarding victims of child abuse or sexual offenses. §§ 119.071(2)(h), 119.0714(1)(h), Fla. Stat.

(xiv) Gestational surrogacy records. § 742.16(9), Fla. Stat.

(xv) Guardianship reports, orders appointing court monitors, and orders relating to findings of no probable cause in guardianship cases. §§ 744.1076, 744.3701, Fla. Stat.

(xvi) Grand jury records. §§ 905.17, 905.28(1), Fla. Stat.

(xvii) Records acquired by courts and law enforcement regarding family services for children. § 984.06(3)–(4), Fla. Stat.

(xviii) Juvenile delinquency records. §§ 985.04(1), 985.045(2), Fla. Stat.

(xix) Records disclosing the identity of persons subject to tuberculosis proceedings and records held by the Department of Health or its authorized representatives relating to known or suspected cases of tuberculosis or exposure to tuberculosis. §§ 392.545, 392.65, Fla. Stat.

(xx) Complete presentence investigation reports. Fla. R. Crim. P. 3.712.

(xxi) Forensic behavioral health evaluations under Chapter 916. § 916.1065, Fla. Stat.

(xxii) Eligibility screening, substance abuse screening, behavioral health evaluations, and treatment status reports for defendants referred to or considered for referral to a drug court program. § 397.334(10)(a), Fla. Stat.

(xxii) Personal identifying information of a witness to a murder for two years after the date of the murder. § 119.071(2)(m), Fla. Stat.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 134 of 185 (xxiii) Petitions and the contents within for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking or cyberstalking, that is dismissed. § 119.0714(1)(k), Fla. Stat.

(2) The filer of any document containing confidential information described in subdivision (d)(1)(B) shall, at the time of filing, file with the clerk a “Notice of Confidential Information within Court Filing” in order to indicate that confidential information described in subdivision (d)(1)(B) of this rule is included within the document being filed and also indicate that either the entire document is confidential or identify the precise location of the confidential information within the document being filed. If an entire court file is maintained as confidential, the filer of a document in such a file is not required to file the notice form. A form Notice of Confidential Information within Court Filing accompanies this rule.

(A) If any document in a court file contains confidential information as described in subdivision (d)(1)(B), the filer, a party, or any affected non-party may file the Notice of Confidential Information within Court Filing if the document was not initially filed with a Notice of Confidential Information within Court Filing and the confidential information is not maintained as confidential by the clerk. The Notice of Confidential Information within Court Filing filed pursuant to this subdivision must also state the title and type of document, date of filing (if known), date of document, docket entry number, indicate that either the entire document is confidential or identify the precise location of the confidential information within the document, and provide any other information the clerk may require to locate the confidential information.

(B) The clerk of court shall review filings identified as containing confidential information to determine whether the purported confidential information is facially subject to confidentiality under subdivision (d)(1)(B). If the clerk determines that filed information is not subject to confidentiality under subdivision (d)(1)(B), the clerk shall notify the filer of the Notice of Confidential Information within Court Filing in writing within 5 days of filing the notice and thereafter shall maintain the information as confidential for 10 days from the date such notification by the clerk is served. The information shall not be held as confidential for more than that 10 day period, unless a motion has been filed pursuant to subdivision (d)(3).

(3) The filer of a document with the court shall ascertain whether any information contained within the document may be confidential under subdivision (c) of this rule notwithstanding that such information is not itemized at

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 135 of 185 subdivision (d)(1) of this rule. If the filer believes in good faith that information is confidential but is not described in subdivision (d)(1) of this rule, the filer shall request that the information be maintained as confidential by filing a “Motion to Determine Confidentiality of Court Records” under the procedures set forth in subdivision (e), (f), or (g), unless

(A) the filer is the only individual whose confidential information is included in the document to be filed or is the attorney representing all such individuals; and

(B) a knowing waiver of the confidential status of that information is intended by the filer. Any interested person may request that information within a court file be maintained as confidential by filing a motion as provided in subdivision (e), (f), or (g).

(4) If a notice of confidential information is filed pursuant to subdivision (d)(2), or a motion is filed pursuant to subdivision (e)(1) or (g)(1) seeking to determine that information contained in court records is confidential, or pursuant to subdivision (e)(5) or (g)(5) seeking to vacate an order that has determined that information in a court record is confidential or seeking to unseal information designated as confidential by the clerk of court, then the person filing the notice or motion shall give notice of such filing to any affected non-party. Notice pursuant to this provision must:

(A) be filed with the court;

(B) identify the case by docket number;

(C) describe the confidential information with as much specificity as possible without revealing the confidential information, including specifying the precise location of the information within the court record; and

(D) include:

(i) in the case of a motion to determine confidentiality of court records, a statement that if the motion is denied then the subject material will not be treated as confidential by the clerk; and

(ii) in the case of a motion to unseal confidential records or a motion to vacate an order deeming records confidential, a statement

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 136 of 185 that if the motion is granted, the subject material will no longer be treated as confidential by the clerk.

Any notice described herein must be served pursuant to subdivision (k), if applicable, together with the motion that gave rise to the notice in accordance with subdivision (e)(5) or (g)(5).

(5) Except when the entire court file is maintained as confidential, if a judge, magistrate, or hearing officer files any document containing confidential information, the confidential information within the document must be identified as “confidential” and the title of the document must include the word “confidential.” The clerk must maintain the confidentiality of the indentified confidential information. A copy of the document edited to omit the confidential information shall be provided to the clerk for filing and recording purposes.

(e) Request to Determine Confidentiality of Trial Court Records in Noncriminal Cases.

(1) A request to determine the confidentiality of trial court records in noncriminal cases under subdivision (c) must be made in the form of a written motion captioned “Motion to Determine Confidentiality of Court Records.” A motion made under this subdivision must:

(A) identify the particular court records or a portion of a record that the movant seeks to have determined as confidential with as much specificity as possible without revealing the information subject to the confidentiality determination;

(B) specify the bases for determining that such court records are confidential without revealing confidential information; and

(C) set forth the specific legal authority and any applicable legal standards for determining such court records to be confidential without revealing confidential information.

Any written motion made under this subdivision must include a signed certification by the party or the attorney for the party making the request that the motion is made in good faith and is supported by a sound factual and legal basis. Information that is subject to such a motion must be treated as confidential by the clerk pending the court’s ruling on the motion. A response to a written motion filed under this subdivision may be served within 10 days of service of the motion.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 137 of 185 Notwithstanding any of the foregoing, the court may not determine that the case number, docket number, or other number used by the clerk’s office to identify the case file is confidential.

(2) Except when a motion filed under subdivision (e)(1) represents that all parties agree to all of the relief requested, the court must, as soon as practicable but no later than 30 days after the filing of a motion under this subdivision, hold a hearing before ruling on the motion. Whether or not any motion filed under subdivision (e)(1) is agreed to by the parties, the court may in its discretion hold a hearing on such motion. Any hearing held under this subdivision must be an open proceeding, except that any person may request that the court conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c). Any person may request expedited consideration of and ruling on the motion. The movant shall be responsible for ensuring that a complete record of any hearing held pursuant to this subdivision is created, either by use of a court reporter or by any recording device that is provided as a matter of right by the court. The court may in its discretion require prior public notice of the hearing on such a motion in accordance with the procedure for providing public notice of court orders set forth in subdivision (e)(4) or by providing such other public notice as the court deems appropriate. The court must issue a ruling on the motion within 30 days of the hearing.

(3) Any order granting in whole or in part a motion filed under subdivision (e) must state the following with as much specificity as possible without revealing the confidential information:

(A) The type of case in which the order is being entered;

(B) The particular grounds under subdivision (c) for determining the information is confidential;

(C) Whether any party’s name determined to be confidential and, if so, the particular pseudonym or other term to be substituted for the party’s name;

(D) Whether the progress docket or similar records generated to document activity in the case are determined to be confidential;

(E) The particular information that is determined to be confidential;

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 138 of 185 (F) Identification of persons who are permitted to view the confidential information;

(G) That the court finds that: (i) the degree, duration, and manner of confidentiality ordered by the court are no broader than necessary to protect the interests set forth in subdivision (c); and (ii) no less restrictive measures are available to protect the interests set forth in subdivision (c); and

(H) That the clerk of the court is directed to publish the order in accordance with subdivision (e)(4).

(4) Except as provided by law or court rule, notice must be given of any written order granting in whole or in part a motion made under subdivision (e)(1) as follows:

(A) within 10 days following the entry of the order, the clerk of court must post a copy of the order on the clerk’s website and in a prominent public location in the courthouse; and

(B) the order must remain posted in both locations for no less than 30 days. This subdivision shall not apply to orders determining that court records are confidential under subdivision (c)(7) or (c)(8).

(5) If a nonparty requests that the court vacate all or part of an order issued under subdivision (e) or requests that the court order the unsealing of records designated as confidential under subdivision (d), the request must be made by a written motion, filed in that court, that states with as much specificity as possible the bases for the motion. The motion must set forth the specific legal authority and any applicable legal standards supporting the motion. The movant must serve all parties and all affected non-parties with a copy of the motion. Except when a motion filed under this subdivision represents that all parties and affected non-parties agree to all of the relief requested, the court must, as soon as practicable but no later than 30 days after the filing of a motion under this subdivision, hold a hearing on the motion. Regardless of whether any motion filed under this subdivision is agreed to by the parties and affected non-parties, the court may in its discretion hold a hearing on such motion. Any person may request expedited consideration of and ruling on the motion. Any hearing held under this subdivision must be an open proceeding, except that any person may request that the court conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c). The court must issue a ruling on the motion within 30 days of the hearing. The movant shall be responsible for ensuring that a complete record

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 139 of 185 of any hearing held under this subdivision be created, either by use of a court reporter or by any recording device that is provided as a matter of right by the court. This subdivision shall not apply to orders determining that court records are confidential under subdivision (c)(7) or (c)(8).

(f) Request to Determine Confidentiality of Court Records in Criminal Cases.

(1) Subdivisions (e) and (h) shall apply to any motion by the state, a defendant, or an affected non-party to determine the confidentiality of trial court records in criminal cases under subdivision (c), except as provided in subdivision (f)(3). As to any motion filed in the trial court under subdivision (f)(3), the following procedure shall apply:

(A) Unless the motion represents that the State, defendant(s), and all affected non-parties subject to the motion agree to all of the relief requested, the court must hold a hearing on the motion filed under this subdivision within 15 days of the filing of the motion. Any hearing held under this subdivision must be an open proceeding, except that any person may request that the court conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A).

(B) The court shall issue a written ruling on a motion filed under this subdivision within 10 days of the hearing on a contested motion or within 10 days of the filing of an agreed motion.

(2) Subdivision (g) shall apply to any motion to determine the confidentiality of appellate court records under subdivision (c), except as provided in subdivision (f)(3). As to any motion filed in the appellate court under subdivision (f)(3), the following procedure shall apply:

(A) The motion may be made with respect to a record that was presented or presentable to a lower tribunal, but no determination concerning confidentiality was made by the lower tribunal, or a record presented to an appellate court in an original proceeding.

(B) A response to a motion filed under this subdivision may be served within 10 days of service of the motion.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 140 of 185 (C) The court shall issue a written ruling on a motion filed under this subdivision within 10 days of the filing of a response on a contested motion or within 10 days of the filing of an uncontested motion.

(3) Any motion to determine whether a court record that pertains to a plea agreement, substantial assistance agreement, or other court record that reveals the identity of a confidential informant or active criminal investigative information is confidential under subdivision (c)(9)(A)(i), (c)(9)(A)(iii), (c)(9)(A)(v), or (c)(9)(A)(vii) of this rule may be made in the form of a written motion captioned “Motion to Determine Confidentiality of Court Records.” Any motion made pursuant to this subdivision must be treated as confidential and indicated on the docket by generic title only, pending a ruling on the motion or further order of the court. As to any motion made under this subdivision, the following procedure shall apply:

(A) Information that is the subject of such motion must be treated as confidential by the clerk pending the court’s ruling on the motion. Filings containing the information must be indicated on the docket in a manner that does not reveal the confidential nature of the information.

(B) The provisions of subdivisions (e)(3)(A)–(G), (g)(7), (h), and (j), shall apply to motions made under this subdivision. The provisions of subdivisions (e)(1), (e)(2), (e)(3)(H), (e)(4), and (e)(5) shall not apply to motions made under this subdivision.

(C) No order entered under this subdivision may authorize or approve the sealing of court records for any period longer than is necessary to achieve the objective of the motion, and in no event longer than 120 days. Extensions of an order issued hereunder may be granted for 60–day periods, but each such extension may be ordered only upon the filing of another motion in accordance with the procedures set forth under this subdivision. In the event of an appeal or review of a matter in which an order is entered under this subdivision, the lower tribunal shall retain jurisdiction to consider motions to extend orders issued hereunder during the course of the appeal or review proceeding.

(D) The clerk of the court shall not publish any order of the court issued hereunder in accordance with subdivision (e)(4) or (g)(4) unless directed by the court. The docket shall indicate only the entry of the order.

(4) This subdivision does not authorize the falsification of court records or progress dockets.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 141 of 185 (g) Request to Determine Confidentiality of Appellate Court Records in Noncriminal Cases.

(1) Subdivision (e)(1) shall apply to any motion filed in the appellate court to determine the confidentiality of appellate court records in noncriminal cases under subdivision (c). Such a motion may be made with respect to a record that was presented or presentable to a lower tribunal, but no determination concerning confidentiality was made by the lower tribunal, or a record presented to an appellate court in an original proceeding.

(2) A response to a motion filed under subdivision (g)(1) may be served within 10 days of service of the motion. The court shall issue a written ruling on a written motion filed under this subdivision within 30 days of the filing of a response on a contested motion or within 30 days of the filing of an uncontested written motion.

(3) Any order granting in whole or in part a motion filed under subdivision (g)(1) must be in compliance with the guidelines set forth in subdivisions (e)(3)(A)–(H). Any order requiring the sealing of an appellate court record operates to also make those same records confidential in the lower tribunal during the pendency of the appellate proceeding.

(4) Except as provided by law, within 10 days following the entry of an order granting a motion under subdivision (g)(1), the clerk of the appellate court must post a copy of the order on the clerk’s website and must provide a copy of the order to the clerk of the lower tribunal, with directions that the clerk of the lower tribunal shall seal the records identified in the order. The order must remain posted by the clerk of the appellate court for no less than 30 days.

(5) If a nonparty requests that the court vacate all or part of an order issued under subdivision (g)(3), or requests that the court order the unsealing of records designated as confidential under subdivision (d), the request must be made by a written motion, filed in that court, that states with as much specificity as possible the bases for the request. The motion must set forth the specific legal authority and any applicable legal standards supporting the motion. The movant must serve all parties and all affected non-parties with a copy of the motion. A response to a motion may be served within 10 days of service of the motion.

(6) The party seeking to have an appellate record sealed under this subdivision has the responsibility to ensure that the clerk of the lower tribunal is

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 142 of 185 alerted to the issuance of the order sealing the records and to ensure that the clerk takes appropriate steps to seal the records in the lower tribunal.

(7) Upon conclusion of the appellate proceeding, the lower tribunal may, upon appropriate motion showing changed circumstances, revisit the appellate court’s order directing that the records be sealed.

(8) Records of a lower tribunal determined to be confidential by that tribunal must be treated as confidential during any review proceedings. In any case where information has been determined to be confidential under this rule, the clerk of the lower tribunal shall so indicate in the index transmitted to the appellate court. If the information was determined to be confidential in an order, the clerk’s index must identify such order by date or docket number. This subdivision does not preclude review by an appellate court, under Florida Rule of Appellate Procedure 9.100(d), or affect the standard of review by an appellate court, of an order by a lower tribunal determining that a court record is confidential.

(h) Oral Motions to Determine Confidentiality of Trial Court Records.

(1) Notwithstanding the written notice requirements of subdivision (d)(2) and written motion requirements of subdivisions (d)(3), (e)(1), and (f), the movant may make an oral motion to determine the confidentiality of trial court records under subdivision (c), provided:

(A) except for oral motions under subdivision (f)(3), the oral motion otherwise complies with subdivision (e)(1);

(B) all parties and affected non-parties are present or properly noticed or the movant otherwise demonstrates reasonable efforts made to obtain the attendance or any absent party or affected non-party;

(C) the movant shows good cause why the movant was unable to timely comply with the written notice requirements as set forth in subdivision (d)(2) or the written motion requirement as set forth in subdivision (d)(3), (e)(1), or (f), as applicable;

(D) the oral motion is reduced to written form in compliance with subdivision (d), (e)(1), or (f), as applicable, and is filed within 5 days following the date of making the oral motion;

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 143 of 185 (E) except for oral motions under subdivisions (f)(3), the provisions of subdivision (e)(2) shall apply to the oral motion, procedure and hearing;

(F) the provisions of subdivision (f)(1)(A) and (B) and (f)(3) shall apply to any oral motion under subdivision (f)(3); and

(G) oral motions are not applicable to subdivision (f)(2) or (g) or extensions of orders under subdivision (f)(3)(C).

(2) The court may deny any oral motion made pursuant to subdivision (h)(1) if the court finds that that movant had the ability to timely comply with the written notice requirements in subdivision (d) or the written motion requirements of (d)(3), (e)(1), or (f), as applicable, or the movant failed to provide adequate notice to the parties and affected non-parties of the confidentiality issues to be presented to the court.

(3) Until the court renders a decision regarding the confidentiality issues raised in any oral motion, all references to purported confidential information as set forth in the oral motion shall occur in a manner that does not allow public access to such information.

(4) If the court grants in whole or in part any oral motion to determine confidentiality, the court shall issue a written order that does not reveal the confidential information and complies with the applicable subdivision of this rule as follows:

(A) For any oral motion under subdivision (e) or (f)(1), except subdivisions (f)(1)(A) and (B), the written order must be issued within 30 days of the hearing and must comply with subdivision (e)(3).

(B) For any oral motion under subdivision (f)(3), the written order must be issued within 10 days of the hearing on a contested motion or filing of an agreed motion and must comply with subdivision (f)(3).

(i) Sanctions. After notice and an opportunity to respond, and upon determining that a motion, filing, or other activity described below was not made in good faith and was not supported by a sound legal or factual basis, the court may impose sanctions against any party or non-party and/or their attorney, if that party or non-party and/or their attorney, in violation of the applicable provisions of this rule:

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 144 of 185 (1) seeks confidential status for non-confidential information by filing a notice under subdivision (d)(2);

(2) seeks confidential status for non-confidential information by making any oral or written motion under subdivision (d)(3), (e), (f), (g), or (h);

(3) seeks access to confidential information under subdivision (j) or otherwise;

(4) fails to file a Notice of Confidential Information within Court Filing in compliance with subdivision (d)(2);

(5) makes public or attempts to make public by motion or otherwise information that should be maintained as confidential under subdivision (c), (d), (e), (f), (g) or (h); or

(6) otherwise makes or attempts to make confidential information part of a non-confidential court record.

Nothing in this subdivision is intended to limit the authority of a court to enforce any court order entered pursuant to this rule.

(j) Procedure for Obtaining Access to Confidential Court Records.

(1) The clerk of the court must allow access to confidential court records to persons authorized by law, or any person authorized by court order.

(2) A court order allowing access to confidential court records may be obtained by filing a written motion which must:

(A) identify the particular court record(s) or a portion of the court record(s) to which the movant seeks to obtain access with as much specificity as possible without revealing the confidential information;

(B) specify the bases for obtaining access to such court records;

(C) set forth the specific legal authority for obtaining access to such court records; and

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 145 of 185 (D) contain a certification that the motion is made in good faith and is supported by a sound factual and legal basis.

(3) The movant must serve a copy of the written motion to obtain access to confidential court records on all parties and reasonably ascertainable affected non-parties and the court must hold a hearing on the written motion within a reasonable period of time.

(4) Any order granting access to confidential court records must:

(A) describe the confidential information with as much specificity as possible without revealing the confidential information, including specifying the precise location of the information within the court records;

(B) identify the persons who are permitted to view the confidential information in the court records;

(C) identify any person who is permitted to obtain copies of the confidential court records; and

(D) state the time limits imposed on such access, if any, and any other applicable terms or limitations to such access.

(5) The filer of confidential court records, that filer’s attorney of record, or that filer’s agent as authorized by that filer in writing may obtain access to such confidential records pursuant to this subdivision.

(6) Unless otherwise provided, an order granting access to confidential court records under this subdivision shall not alter the confidential status of the record.

(k) Procedure for Service on Victims and Affected Non-parties and When Addresses Are Confidential.

(1) In criminal cases, when the defendant is required to serve any notice or motion described in this rule on an alleged victim of a crime, service shall be on the state attorney, who shall send or forward the notice or motion to the alleged victim.

(2) Except as set forth in subdivision (k)(1), when serving any notice or motion described in this rule on any affected non-party whose name or

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 146 of 185 address is not confidential, the filer or movant shall use reasonable efforts to locate the affected non-party and may serve such affected non-party by any method set forth in Florida Rule of Judicial Administration 2.516.

(3) Except as set forth in subdivision (k)(1), when serving any notice or motion described in this rule and the name or address of any party or affected non-party is confidential, the filer or movant must state prominently in the caption of the notice or motion “Confidential Party or Confidential Affected Non- Party — Court Service Requested.” When a notice or motion so designated is filed, the court shall be responsible for providing a copy of the notice or motion to the party or affected non-party, by any method permitted in Florida Rule of Judicial Administration 2.516, in such a way as to not reveal the confidential information.

(l) Denial of Access Request for Administrative Records. Expedited review of denials of access to administrative records of the judicial branch shall be provided through an action for mandamus or other appropriate relief, in the following manner:

(1) When a judge who has denied a request for access to records is the custodian, the action shall be filed in the court having appellate jurisdiction to review the decisions of the judge denying access. Upon order issued by the appellate court, the judge denying access to records shall file a sealed copy of the requested records with the appellate court.

(2) All other actions under this rule shall be filed in the circuit court of the circuit in which such denial of access occurs.

(m) Procedure for Public Access to Judicial Branch Records. Requests and responses to requests for access to records under this rule shall be made in a reasonable manner.

(1) Requests for access to judicial branch records shall be in writing and shall be directed to the custodian. The request shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed.

(2) The custodian shall be solely responsible for providing access to the records of the custodian’s entity. The custodian shall determine whether the requested record is subject to this rule and, if so, whether the record or portions of the record are exempt from disclosure. The custodian shall determine the form in

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 147 of 185 which the record is provided. If the request is denied, the custodian shall state in writing the basis for the denial.

(3) Fees for copies of records in all entities in the judicial branch of government, except for copies of court records, shall be the same as those provided in section 119.07, Florida Statutes.

Committee Note

1995 Amendment. This rule was adopted to conform to the 1992 addition of article I, section 24, to the Florida Constitution. Amendments to this rule were adopted in response to the 1994 recommendations of the Study Committee on Confidentiality of Records of the Judicial Branch.

Subdivision (b) has been added by amendment and provides a definition of “judicial records” that is consistent with the definition of “court records” contained in rule 2.075(a)(1) [renumbered as 2.430(a)(1) in 2006] and the definition of “public records” contained in chapter 119, Florida Statutes. The word “exhibits” used in this definition of judicial records is intended to refer only to documentary evidence and does not refer to tangible items of evidence such as firearms, narcotics, etc. Judicial records within this definition include all judicial records and data regardless of the form in which they are kept. Reformatting of information may be necessary to protect copyrighted material. Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983).

The definition of “judicial records” also includes official business information transmitted via an electronic mail (e-mail) system. The judicial branch is presently experimenting with this new technology. For example, e-mail is currently being used by the judicial branch to transmit between judges and staff multiple matters in the courts including direct communications between judges and staff and other judges, proposed drafts of opinions and orders, memoranda concerning pending cases, proposed jury instructions, and even votes on proposed opinions. All of this type of information is exempt from public disclosure under rules 2.051(c)(1) and (c)(2) [renumbered as 2.420(c)(1) and (c)(2) in 2006]. With few exceptions, these examples of e-mail transmissions are sent and received between judicial officials and employees within a particular court’s jurisdiction. This type of e-mail is by its very nature almost always exempt from public record disclosure pursuant to rule 2.051(c). In addition, official business e-mail transmissions sent to or received by judicial officials or employees using dial-in equipment, as well as the use of on- line outside research facilities such as Westlaw, would also be exempt e-mail under rule 2.051(c). On the other hand, we recognize that not all e-mail sent and received within a particular court’s jurisdiction will fall into an exception under rule 2.051(c). The fact that a non-exempt e-mail message made or received in connection with official court business is transmitted intra-court does not relieve judicial officials or employees from the obligation of properly having a record made of such messages so they will be available to the public similar to any other written communications. It appears that official business e-mail that is sent or received by persons outside a particular court’s jurisdiction is largely non-exempt and is subject to recording in some form as a public record. Each court should develop a means to properly make a record of non-exempt official business e-mail by either electronically storing the mail or by making a hard copy. It is important to note that, although official business communicated by e-mail transmissions is a matter of public record under the rule, the exemptions provided in rule 2.051(c) exempt many of these judge/staff transmissions from the public record. E-mail may also include transmissions that are clearly not official business and are, consequently, not required to be recorded as a public record. Each court should also publish an e-mail address for public access. The individual e-mail addresses of judicial officials and staff are exempt under rule 2.051(c)(2) to protect the compelling interests of maintaining the uninterrupted use of the computer for research, word-processing, preparation of opinions, and communication during trials, and to ensure computer security.

Subdivision (c)(3) was amended by creating subparts (a) and (b) to distinguish between the provisions governing the confidentiality of complaints against judges and complaints against other individuals or entities licensed or regulated by the Supreme Court.

Subdivision (c)(5) was amended to make public the qualifications of persons applying to serve or serving

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 148 of 185 the court as unpaid volunteers such as guardians ad litem, mediators, and arbitrators and to make public the applications and evaluations of such persons upon a showing of materiality in a pending court proceeding or upon a showing of good cause.

Subdivision (c)(9) has also been amended. Subdivision (c)(9) was adopted to incorporate the holdings of judicial decisions establishing that confidentiality may be required to protect the rights of defendants, litigants, or third parties; to further the administration of justice; or to otherwise promote a compelling governmental interest. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla.1988); Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla.1982). Such confidentiality may be implemented by court rule, as well as by judicial decision, where necessary for the effective administration of justice. See, e.g., Fla.R.Crim.P. 3.470, (Sealed Verdict); Fla.R.Crim.P. 3.712, (Presentence Investigation Reports); Fla.R.Civ.P. 1.280(c), (Protective Orders).

Subdivision (c)(9)(D) requires that, except where otherwise provided by law or rule of court, reasonable notice shall be given to the public of any order closing a court record. This subdivision is not applicable to court proceedings. Unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla.1982), the closure of court records has not required prior notice. Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding. Providing reasonable notice to the public of the entry of a closure order and an opportunity to be heard on the closure issue adequately protects the competing interests of confidentiality and public access to judicial records. See Florida Freedom Newspapers, Inc. v. Sirmons, 508 So. 2d 462 (Fla. 1st DCA 1987), approved, Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla.1988); State ex rel. Tallahassee Democrat v. Cooksey, 371 So. 2d 207 (Fla. 1st DCA 1979). Subdivision (c)(9)(D), however, does not preclude the giving of prior notice of closure of a court record, and the court may elect to give prior notice in appropriate cases.

2002 Court Commentary

The custodian is required to provide access to or copies of records but is not required either to provide information from records or to create new records in response to a request. Op. Atty. Gen. Fla. 80-57 (1980); Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA 1991); Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982).

The writing requirement is not intended to disadvantage any person who may have difficulty writing a request; if any difficulty exists, the custodian should aid the requestor in reducing the request to writing.

It is anticipated that each judicial branch entity will have policies and procedures for responding to public records requests.

The 1995 commentary notes that the definition of “judicial records” added at that time is consistent with the definition of “court records” contained in rule 2.075(a)(1) [renumbered as 2.430(a)(1) in 2006] and the definition of “public records” contained in chapter 119, Florida Statutes. Despite the commentary, these definitions are not the same. The definitions added in 2002 are intended to clarify that records of the judicial branch include court records as defined in rule 2.075(a)(1) and administrative records. The definition of records of the judicial branch is consistent with the definition of “public records” in chapter 119, Florida Statutes.

2005 Court Commentary

Under courts’ inherent authority, appellate courts may appoint a special magistrate to serve as commissioner for the court to make findings of fact and oversee discovery in review proceedings under subdivision (d) of this rule. Cf. State ex rel. Davis v. City of Avon Park, 158 So. 159 (Fla. 1934) (recognizing appellate courts’ inherent authority to do all things reasonably necessary for administration of justice within the scope of courts’ jurisdiction, including the appointment of a commissioner to make findings of fact); Wessells v. State, 737 So. 2d 1103 (Fla. 1st DCA 1998) (relinquishing jurisdiction to circuit court for appointment of a special master to serve as commissioner for court to make findings of fact).

2007 Court Commentary

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 149 of 185 New subdivision (d) applies only to motions that seek to make court records in noncriminal cases confidential in accordance with subdivision (c)(9).

2007 Committee Commentary

Subdivision (d)(2) is intended to permit a party to make use of any court-provided recording device or system that is available generally for litigants’ use, but is not intended to require the court system to make such devices available where they are not already in use and is not intended to eliminate any cost for use of such system that is generally borne by a party requesting use of such system.

APPENDIX TO RULE 2.420

IN THE .....(NAME OF COURT)....., FLORIDA CASE NO.: ......

Plaintiff/Petitioner, v.

Defendant/Respondent. /

NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

Pursuant to Florida Rule of Judicial Administration 2.420(d)(2), I hereby certify:

( )(1) I am filing herewith a document containing confidential information as described in Rule 2.420(d)(1)(B) and that:

(a) The title/type of document is , and :

(b)( ) the entire document is confidential, or

( ) the confidential information within the document is precisely located at :

. OR

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 150 of 185 ( )(2) A document was previously filed in this case that contains confidential information as described in Rule 2.420(d)(1)(B), but a Notice of Confidential Information within Court Filing was not filed with the document and the confidential information was not maintained as confidential by the clerk of the court. I hereby notify the clerk that this confidential information is located as follows:

(a) Title/type of document: ; (b) Date of filing (if known): ; (c) Date of document: ; (d) Docket entry number: ; (e) ( ) Entire document is confidential, or ( ) Precise location of confidential information in document: . .

Filer’s Signature

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was furnished by (e-mail) (delivery) (mail) (fax) on: (All parties and Affected Non-Parties. Note: If the name or address of a Party or Affected Non-Party is confidential DO NOT include such information in this Certificate of Service. Instead, serve the State Attorney or request Court Service. See Rule 2.420(k)) , on , 20 .

Name ...... Address ...... Phone ...... Florida Bar No. (if applicable)...... E-mail address ......

Note: The clerk of court shall review filings identified as containing confidential information to determine whether the information is facially subject to confidentiality under subdivision (d)(1)(B). The clerk shall notify the filer in

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 151 of 185 writing within 5 days if the clerk determines that the information is NOT subject to confidentiality, and the records shall not be held as confidential for more than 10 days, unless a motion is filed pursuant to subdivision (d)(3) of the Rule. Fla. R. Jud. Admin. 2.420(d)(2).

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 152 of 185 Rules of Judicial Administration Subcommittee B Report October 2017 I. Members Stephanie Zimmerman, Chair Hon. Stephanie Ray, Vice Chair Michael Debski José Flórez Tom Hall Justin Horan Hon. Richard Nielsen Paul Regensdorf Caroline Sikorske Jeffrey Willis

II. Issues

Subcommittee B has two issues to address. They are:

A. 17-RJA-02

Background This matter was referred to Subcommittee B from the liaison to the Appellate Court Rules Committee. The ACRC has proposed amendments to Appellate Rule of Procedure 9.220, which includes a ban on condensed transcripts unless authorized by the court. The ACRC asked the RJA to promulgate and adopt a similar rule that would apply in the lower courts. The referral was also made to the Criminal Rules Committee and the Civil Rules Committee.

Summary of Issues The Appellate Court judges assert that the condensed transcripts often cannot be read. Often, the condensed transcripts have been scanned and copied numerous times and are illegible. We were also advised that in criminal proceedings, particularly death penalty cases, the illegibility of condensed transcripts can be an issue. Essentially, the problem is that the condensed transcripts when filed electronically are illegible.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 153 of 185 Factors Considered by the Subcommittee Subcommittee B met and discussed this issue on three occasions. The first meeting advised the Subcommittee members of the referral and provided an opportunity to review the materials. The Subcommittee wanted to hear from the Criminal Rules Committee and the Rules of Civil Procedure Committee before addressing this issue, particularly to hear the position of the lawyers practicing in those courts.

Judge Higbee, who chaired the subcommittee on this issue for the Criminal Rules Committee participated in our April 5, 2017, Subcommittee B meeting, which was held via phone conference. Judge Higbee reported that the Criminal Rules Subcommittee on this issue had voted 8 to 1 to adopt the position of the Appellate Rules Committee. Although Judge Higbee routinely uses and likes four pane transcripts and started out opposing the request, the state attorneys and defense attorneys persuaded him and others to adopt the request by the Appellate Rules. The practitioners felt that there were problems with the legibility of the condensed transcripts. Accordingly, the proposal has overwhelming support from the Criminal Rules Committee. The sole vote was not in opposition, but was a vote of "no position".

Michael Orr, who chairs the subcommittee on this issue for the Civil Rules Committee was unable to attend the meeting, but advised by email that there was no opposition to the concept or to a proposed rule from the Rules of Civil Procedure Committee. They determined to take no action and are waiting to see what the RJA proposes.

Subcommittee B also discussed concerns about the availability of full sized transcripts. Many civil practitioners do not request full size transcripts, particularly for lengthy depositions or hearings. However, it was pointed out that court reporters have to maintain transcripts for a long period of time and that the full size transcripts would be available from the court reporter.

Subcommittee B also discussed as to whether instead of banning the condensed/4- pane transcripts, that the legibility of the condensed transcripts could be ensured by requiring that they be scannable, text searchable, or have other technical requirements. We were reminded those technical requirements are being addressed elsewhere and that our Subcommittee should focus on the issue of whether preclude the filing of condensed transcripts.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 154 of 185 Majority position The majority position was to draft a rule barring the filing of condensed transcripts.

Minority position None. However, there were concerns raised about the availability and costs of full- sized transcripts. June 2017 Meeting At the June RJA meeting, Subcommittee B presented its recommendation to draft a rule barring the filing of condensed transcripts. After receiving comments from the committee, it was agreed that the Subcommittee would continue to draft a proposed rule. Proposed Amendment None at this time. However, a proposal is being drafted. Time Considerations for Adoption Proposal: None known.

B. 17-RJA-13

Background This matter was referred to Subcommittee B from Sara Blumberg, an Administrative Traffic Hearing Officer in the 15th Judicial Circuit, on August 18, 2017. Ms. Blumberg indicates that there may be a conflict between Florida Rule of Judicial Administration 2.265 and section 90.202, Florida Statutes (2017).

Summary of Issues Section 90.202(10), Florida Statutes, permits a court to take judicial notice of “duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies.” In contrast, Rule 2.265(b) provides “The judges of the county courts may take judicial notice of any municipal ordinance if a certified copy of the ordinance has been filed in the office of the clerk of circuit court or, in those counties having a clerk of the county court, filed in that office, and if a certified copy of the ordinance is presented to the court.” The statute indicates that a printed copy of the ordinance is sufficient to take judicial notice, while the rule requires a certified copy.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 155 of 185 Subcommittee Action At the time of completing this report, the Subcommittee has not yet been able to discuss the referral.

Respectfully submitted, /s/ Stephanie Zimmerman Chair, Subcommittee B

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 156 of 185 Re: RJA Amy Borman to: Bart Schneider 06/23/2015 05:48 PM Cc: Krys Godwin, Judge Scott Stephens History: This message has been replied to.

Amy Borman thanks Bart! Tom Hall and I have discussed other issues with the

Krys Godwin Amy, I am thinking that this can/should be held until after

Krys Godwin that works. I am good for an

Krys Godwin I could do the

Krys Godwin Not really. Just express our g thanks Bart! Tom Hall and I have discussed other issues with the RJA rule on the procedure for filing a petition for a local rule/ao review. This will dovetail nicely into it. I will also bring up your second issue as well. If you think of anything else, let me know. thanks, Amy

Sent from my iPad

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure. On Jun 23, 2015, at 5:07 PM, "Bart Schneider" wrote:

Amy‐

Congratulations on being the incoming chair of the RJA!!!

I have two ideas I would like your committee to consider, but please keep my name out of any discussions.

The first problem is that the Local Rules Advisory Committee often has difficulty deciding where an AO ends and a local rule begins. The committee has found the definitions in 2.120(b) and 2.120(c) to be unhelpful….and I’m being diplomatic. Judge Stephens is on the LRAC and is aware of the problem, which is why I have included him in this email. I was hoping the RJA could come up with definitions for “AO” and “local court rule” that illuminate the distinction between the two.

Second, I head of an issue where a criminal defense attorney filed a notice of expiration of speedy thru the portal, which was accepted by the clerk’s office but not by the state attorney’s

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 157 of 185 office. An email was generated back to the defense attorney telling him that the state did not get the filing, but the defense attorney claimed that his office did not notice that email until weeks later. Even so, because the issue involved speedy trial, exact dates were important. As for the RJA, the rules are not clear about when a filing is “perfected.” Is the pleading considered filed if the clerk’s office receives it even though the other party didn’t? I think the rules should be unambiguous regarding the legal consequences of something going wrong with the electronic filing.

Thanks and congrats again!

Bart Schneider Senior Attorney II General Counsel’s Office Office of the State Courts Administrator Supreme Court Building 500 South Duval Street Tallahassee, FL 32399 Phone: 850‐413‐7321 Fax: 850‐410‐5301 [email protected]

Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send emails to this entity. Instead, contact this office by phone or in writing.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 158 of 185 Rules of Judicial Administration Committee Out-of-Cycle Report

The Rules of Judicial Administration Committee invites comments on the proposed rule amendment anticipated to be included in the Committee and Media Law Section joint out-of-cycle report regarding electronic devices for audio and video coverage of judicial proceedings.

Interested persons have until September 15, 2017, to submit any comments, electronically, to Judson Cohen, Chair of the Rules of Judicial Administration Committee, at [email protected] and to the Bar staff liaison Krys Godwin, at [email protected].

RULE 2.450. TECHNOLOGICALUSE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

(a) Electronic Devices Defined. An electronic device is any device capable of making or transmitting still or moving photographs, video recording, or images of any kind; any device capable of creating, transmitting, or receiving text or data; and any device capable of receiving, transmitting, or recording sound. Electronic devices include, without limitation, film cameras, digital cameras, video cameras, any other type of camera, cellular telephones, tape recorders, digital voice recorders, any other type of audio recorders, laptop computers, personal digital assistants, or other similar technological devices with the ability to make or transmit video recordings, audio recordings, images, text, or data. For purposes of this rule, an electronic device does not include equipment used by the court to produce the official record of a proceeding.

(b) Authority of Judge to Control Use of Electronic and Still Photography AllowedDevices. The use of electronic devices in a courtroom, including, without limitation, the type of devices allowed, the number of devices allowed, and the placement of the device, is Ssubject at all times to the authority of the presiding judge or quasi-judicial officers to:

(i1) control the conduct of proceedings before the court;

(ii2) ensure decorum and prevent distractions; and

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 159 of 185 (iii3) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of this state shall be allowed in accordance with the following standards of conduct and technology promulgated by the Supreme Court of Florida.

(b) Equipment and Personnel.

(1) At least 1 portable television camera, operated by not more than 1 camera person, shall be permitted in any trial or appellate court proceeding. The number of permitted cameras shall be within the sound discretion and authority of the presiding judge.

(2) Not more than 1 still photographer, using not more than 2 still cameras, shall be permitted in any proceeding in a trial or appellate court.

(3) Not more than 1 audio system for radio broadcast purposes shall be permitted in any proceeding in a trial or appellate court. Audio pickup for all media purposes shall be accomplished from existing audio systems present in the court facility. If no technically suitable audio system exists in the court facility, microphones and related wiring essential for media purposes shall be unobtrusive and shall be located in places designated in advance of any proceeding by the chief judge of the judicial circuit or district in which the court facility is located.

(4) Any “pooling” arrangements among the media required by these limitations on equipment and personnel shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personnel from a proceeding.

(c) Sound and Light Criteria.

(1) Only television photographic and audio equipment that does not produce distracting sound or light shall be used to cover judicial proceedings. No artificial lighting device of any kind shall be used in connection with the television camera.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 160 of 185 (2) Only still camera equipment that does not produce distracting sound or light shall be used to cover judicial proceedings. No artificial lighting device of any kind shall be used in connection with a still camera.

(3) It shall be the affirmative duty of media personnel to demonstrate to the presiding judge adequately in advance of any proceeding that the equipment sought to be used meets the sound and light criteria enunciated in this rule. A failure to obtain advance judicial approval for equipment shall preclude its use in any proceeding.

Approval Before Use of Electronic Devices for Audio or Video Coverage. Absent prior approval by the presiding judge or quasi-judicial officer, electronic devices must not be used during a court proceeding to make an audio or visual recording. The court must provide reasonable opportunities, such as prior to the proceeding or during a recess, for persons wishing to obtain prior approval to be heard.

(d) Location of Equipment Personnel.

(1) Television camera equipment shall be positioned in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. If and when areas remote from the court facility that permit reasonable access to coverage are provided, all television camera and audio equipment shall be positioned only in such area. Videotape recording equipment that is not a component part of a television camera shall be located in an area remote from the court facility.

(2) A still camera photographer shall position himself or herself in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. Still camera photographers shall assume a fixed position within the designated area and, once established in a shooting position, shall act so as not to call attention to themselves through further movement. Still camera photographers shall not be permitted to move about in order to obtain photographs of court proceedings.

(3) Broadcast media representatives shall not move about the court facility while proceedings are in session, and microphones or taping equipment once positioned as required by subdivision (b)(3) shall not be moved during the pendency of the proceeding.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 161 of 185 Standard Governing Court Approval. The judge or quasi-judicial officer shall allow the use of electronic devices for coverage of the proceedings, subject to the judge’s authority to control the manner of their use. The court may exclude electronic coverage of a specific participant only upon a finding that such coverage will cause special and identifiable injury to the participant. Such special and identifiable injury is present where the coverage will substantially affect the participant in a way that is qualitatively different from the effect on a member of the general public, and where the type of electronic device used will have qualitatively different effect on the participant than coverage by other means.

(e) Evidentiary Hearing. Before prohibiting the use of electronic devices during any portion of a proceeding for any reason other than disruption of the proceeding or failure to obtain prior approval, the presiding judge or quasi- judicial officer shall hold an evidentiary hearing, upon reasonable notice, at which those requesting permission to use electronic devices have a fair opportunity to be heard.

(f) Movement During Proceedings. News media photographic or audio equipment shall not be placed in or removed from the court facility except before commencement or after adjournment of proceedings each day, or during a recess. Neither television film magazines nor still camera film or lenses shall be changed within a court facility exceptEquipment placement or changes potentially disruptive to a proceeding may be made only during a recess in the proceedingor as otherwise determined by a judge or quasi-judicial officer.

(f) Courtroom Light Sources. With the concurrence of the chief judge of a judicial circuit or district in which a court facility is situated, modifications and additions may be made in light sources existing in the facility, provided such modifications or additions are installed and maintained without public expense.

(g) Pooling Agreements. Any “pooling” arrangements among the media required by limitations on the use of electronic devices shall be the sole responsibility of the media without calling upon the presiding judge or quasi- judicial officer to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. When there is an objection to the agreement, the presiding judge or quasi-judicial officer may exclude from the courtroom any electronic device that is not used in accordance with this subdivision.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 162 of 185 (h) Conferences of Counsel. To protect the attorney-client privilege and the effective right to counsel, there shall be no audio pickup or broadcast of conferences that occur in a court facilityroom used for a proceeding between attorneys and their clients, between co-counsel of a client, or between counsel and the presiding judge or quasi-judicial officer held at the bench.

(hi) Impermissible Use of Media Material. None of the film, videotape, still photographs, or audio reproductions developed during or by virtue of No audio or video recording resulting from coverage of a judicialcourt proceeding shall be admissible as evidence in the proceeding out of which it arose, in any proceeding subsequent or collateral thereto, or upon retrial or appeal of such proceedingsdeemed the official record of the proceeding. Such recordings are only admissible in court proceedings as permitted by the applicable statutes and rules.

(ij) Appellate Review. Review of an order excluding the electronic media from access to any proceeding, excluding coverage of a particular participant, or upon any other matters arising issued under these standardsthis rule shall be pursuant to Florida Rule of Appellate Procedure 9.100(d).

Committee Note

20__ Amendment. This rule has been updated to reflect the extensive and ongoing technological changes that have occurred since electronic coverage of court proceedings was first addressed by rule in 1993. The new version of the rule eliminates references to outdated technologies and processes. It is intended to encompass both existing technologies and those yet to be developed. The amended rule also addresses the use of technology by traditional media, non-traditional media, and individuals. It is designed to provide guidance to those stakeholders as well as establish a procedural framework for use by judges and quasi-judicial officers who seek to regulate the use of electronic devices in court proceedings in a manner consistent with controlling authority. The legal standard for exclusion of electronic media set forth in subdivision (d) of the revised rule was established by Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764 (Fla. 1979). The Florida Supreme Court has consistently adhered to this standard, most recently referencing it in Chavez v. State, 832 So. 2d 730 (Fla. 2002). The rule does not address procedural issues related to application of the qualified reporter’s privilege established by the Florida Supreme Court in State v. Davis, 720 So. 2d 220 (Fla. 1998).

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 163 of 185 Court Commentary

1994 Amendment. This rule was copied from Canon 3A(7) of the Code of Judicial Conduct. Canon 3A(7) represented a departure from former Canon 3A(7) [ABA Canon 35]. The former canon generally proscribed electronic media and still photography coverage of judicial proceedings from within and in areas immediately adjacent to the courtroom, with three categories of exceptions — (a) use for judicial administration, (b) coverage of investitive, ceremonial, and naturalization proceedings, and (c) use for instructional purposes in educational institutions. Subject to the limitations and promulgation of standards as mentioned therein, the revised canon constituted a general authorization for electronic media and still photography coverage for all purposes, including the purposes expressed as exceptions in the former canon. Limited only by the authority of the presiding judge in the exercise of sound discretion to prohibit filming or photographing of particular participants, consent of participants to coverage is not required. The text of the rule refers to public judicial proceedings. This is in recognition of the authority reposing in the presiding judge, upon the exercise of sound discretion, to hold certain judicial proceedings or portions thereof in camera, and in recognition of the fact that certain proceedings or portions thereof are made confidential by statute. The term “presiding judge” includes the chief judge of an appellate tribunal.

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 164 of 185 Godwin, Krys

From: Lawrence Mirman Sent: Thursday, August 17, 2017 3:58 PM To: Cohen, Judson; Godwin, Krys Cc: Elizabeth Metzger; Genung, Thomas Subject: proposed amendment to RULE 2.450

Dear Counselors:

I am Lawrence Mirman, a circuit judge for the 19th judicial circuit. I have presided over trials involving substantial publicity. I continue to preside over some very high profile cases.

In my experience, the current rule has proven to be useful, efficient and fair. I am able to give the press a copy of our local administrative order which codifies rule 2.450 on short notice. It has always worked to allow fair coverage and access on short notice. I have never received a complaint from the press regarding access or coverage.

In my view the proposed changes are unnecessary and would yield significant inefficiency in the form of wasted court time.

I am against the proposed amendment.

Thank you for your consideration of my opinion in this matter.

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 165 of 185 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 166 of 185 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 167 of 185 ROSEMARY N. PALMER, ATTORNEY AT LAW 5260 PIMLICO DRIVE, TALLAHASSEE FL 32309, 850 668-9203

September 20, 2017

Rules of Judicial Administration Committee ATTN: Judson Cohen, Chair [email protected] Krys Godwin, Bar Staff Liaison [email protected] The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399-2300

RE: Proposed Amendments to Rule 2.450

Dear Committee Members:

In your consideration of the issues arising out of the proposed rule about audio and video recording, the history of the rule has been obscured. It began when the Florida Supreme Court ordered courts to allow coverage of court proceedings in 1979. The Supreme Court said:

Subject to the limitations and promulgation of standards as mentioned therein, the revised canon constitutes a general authorization for electronic media and still photography coverage for all purposes, including the purposes expressed as exceptions in the former canon. Limited only by the authority of the presiding judge in the exercise of sound discretion to prohibit filming or photographing of particular participants, consent of participants to coverage is not required. The text of the canon refers to Public judicial proceedings. This is in recognition of the authority reposing in the presiding judge, upon the exercise of sound discretion, to hold certain judicial proceedings or portions thereof In camera, and in recognition of the fact that certain proceedings or portions thereof are made confidential by statute. Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 782 (Fla., 1979)

This rule followed (see https://www.floridabar.org/news/resources/rpt-hbk-06/) with all the specific directions that the proposed amendment now eliminates. Any amendment needs to clearly assert that electronic media and still photography is permitted, except as outlined in the rule. And the rule needs to clearly outline the situations where recording is not permitted.

It is critical to preserving public right to hold public officials who serve in court rooms accountable for justice.

1) It needs to assure that anyone can record a judge who orders a party to be physically searched in a chamber hearing (because opposing counsel has communicated in some way (falsely) that

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 168 of 185 she has secretly recorded other meetings with public employees) and then viciously speaks to that party in front of opposing party and witnesses in the room.

2) It needs to assure that a judge cannot make inappropriate comments and then order the court reporter to strike them so they don’t appear in the record, without those who see and hear this having any way to prove it.

3) It needs to assure that there is a way to hold a judge accountable when he wanders into the jury room to discuss the case with the jurors, and/or speaks harshly to one party in front of the jury.

4) It needs to assure someone can preserve a record when a judge sleeps through parts of a hearing.

5) It needs to assure that a judge in juvenile court finds a child delinquent when there is insufficient evidence to support, and says it is necessary to get the child the help they need can be held accountable.

6) It needs to assure that a judge who tells grandma that her grandchild is in a foster home that will be adopting the child and she cannot do a thing about it because she raised a bad child, so she must be a bad parent, before the parents right are terminated, and then threatens her if she appeals, and she seeks the official recording and is told it has disappeared.

(If you are wondering how all these things could happen without anyone making complaints to the judicial conduct commission, you haven’t served poor people in a small county. But even when these situations occur in a larger county, weighing the price of ticking off any judge is a huge consideration. And without a recording of what happened, the Judicial Commission is unlikely to find for the complainant, and the others in a court room are likely just as afraid of retaliation as the person who has been ill treated.)

Further the rule should be clear that if the person is audio or video recording the judge or public employees in public buildings in the course of their doing their public jobs, it cannot be forbidden because the judge or those public employees personally object. (The requirement for a hearing before forbidding recording that apparently existed in the original rule needs to be part of this rule.)

Since the Florida Supreme Court first authorized recording in 1979 above, Congress passed Americans With Disabilities Act of 1990. Public Law 101-336. 108th Congress, 2nd session (July 26, 1990), 42 U.S. Code § 12101, as amended 2008. This law prohibits courts from discriminating against people with disabilities in public programs and services. To the extent that parties and their attorneys need to record proceedings as a reasonable accommodation of their disability, it would be unlawful to prohibit their doing so. (This commonly occurs when there is an executive function disorder that interferes with memory or simultaneous notetaking, but can also be needed for other conditions.) So the rule should specifically mention that the

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 169 of 185 judges and quasi judges in state courts and proceedings must grant reasonable accommodations and the court divisions need to have a process to do so, without requiring those who need them to ask the specific judge in their case for those accommodations, and without their requiring to ask on the record of specific cases.

Finally, the proposed amendment is wholly impractical. The general public doesn’t have any reason to know that there could be a limitation on recording witnesses or in trials, or that this judicial administration rule even exists: a rule that forbids them from recording without advanced permission practically guarantees their violation of it. Given current personnel limitations from the traditional press, there are more and more citizen reporters/bloggers who are unlikely to know a reporter who knows how Judge so and so does things (or know to refer them to the “Reporter’s Notebook on the court page so that they can be informed). Furthermore, requiring that notice guarantees the very distraction and disruption that the guidelines of use were originally designed to prevent. No need for a judge to tell someone where to set up, if the rule described the parameters. No need to check in with advanced notice taking court time for something other than court work. And if the recording is being done without anyone even being aware of it, isn’t that the epitome of system efficiency?

Respectfully,

/s/Rosemary N. Palmer Rosemary N. Palmer Attorney at Law 5260 Pimlico Drive Tallahassee FL 32309 850 668-9203 [email protected]

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October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 170 of 185 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 171 of 185 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 172 of 185 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 173 of 185 Godwin, Krys

From: Craig Waters Sent: Wednesday, September 20, 2017 11:00 AM To: Godwin, Krys Cc: Walker, Francine Subject: RE: FYI -- Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

Krys:

I believe Karen Levey in the Ninth Judicial Circuit is going to file something with the committee later today. Court public information officers (PIOs) from around the state have expressed concern to me about this matter. However, our professional association – the Florida Court Public Information Officers, Inc. (FCPIO) – will be unable to complete its own corporate decision‐making process on this issue in time to meet today’s deadline.

So I would like to offer my own views to the committee. From my own personal professional point of view, the rules proposal is significantly inconsistent with the longstanding practices of the Florida Supreme Court regarding the use of electronic devices in its own courtroom here in Tallahassee.

We do not permit any type of cell phone or any other video recording device in the Florida Supreme Court courtroom at the present time, for example. Such devices must be checked at the Marshal’s security station and kept there upon entry into the building.

Instead, we have our own robotic cameras located in the courtroom and operated under a recurring contract with Florida State University’s communications school. We provide a clean feed of the video stream to a video splitter device (often called a “mult box”) located in our press room in the Court building. In addition, the processed feed is available via satellite downlink and by Internet download. This fall we also will begin offering the live video stream via Facebook Live.

In addition, all oral argument videos are archived in unedited and complete form within 24 hours of occurrence for continuous availability on our Gavel to Gavel broadcast website (http://wfsu.org/gavel2gavel/). The archives go back to 1997 when our current broadcasting program began.

In effect, the Florida Supreme Court provides its own pool cameras to all takers for every oral argument that occurs in our courtroom. We do not permit individual media organizations or reporters to provide an independent pooling system at the Florida Supreme Court, not even for cases as high profile as Bush v. Gore and In re: Schiavo.

My view for many years now as a lawyer and a court public information officer is that we fully comply with First Amendment requirements by offering these multiple avenues for accessing and redistributing our live and archived video streams. The limitations we impose on independent video recording in our courtroom are, in my personal view, entirely consistent with the First Amendment because of the unedited and unrestricted access we provide by these alternative means. There thus is no need for any kind of evidentiary hearing merely because we do not permit other individually owned video recording devices into our courtroom. In fact, allowing evidentiary hearings would disrupt and delay the existing appellate process without serving any useful or constitutionally required purpose.

As I said earlier, the Florida Court Public Information Officers, Inc., of which I am the executive director, will be unable to make a decision as a corporation by your deadline due to the impact of Hurricane Irma. However, individual PIOs like Karen Levey in the Ninth Judicial Circuit may choose to file comments with the committee. FCPIO will consider what

1 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 174 of 185 further action it may need to take as a nonprofit corporation with a professional interest in this matter once your recommendations are filed with the Florida Supreme Court.

I would like to stress that the views contained in this email are made without any consultation by me with the Justices of the Florida Supreme Court or their personal legal staff. I am providing them solely as my personal professional views so that you and the committee are fully aware of how the Florida Supreme Court currently provides access to video of our proceedings and how this rules proposal might disrupt that process. As part of administrative staff, I do not have any role in providing legal advice to the Florida Supreme Court in its rulemaking process.

Robert Craig Waters Florida Bar # 648973 850‐414‐7641

From: Godwin, Krys [mailto:[email protected]] Sent: Friday, September 15, 2017 11:39 AM To: Walker, Francine ; Eunice Sigler ; Craig Waters Cc: Karen Levey ; SC‐FCPIO ; Cohen, Judson Subject: RE: FYI ‐‐ Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

Yes, if anyone would like to submit a comment, the Committee would be happy to accept them until close of business, Wednesday, September 20. That should give the subcommittee sufficient time to address the concerns in preparation for the October 13 Rules of Judicial Administration Committee meeting.

My correct number is below, in my signature block, if you have any questions.

Sincerely,

Krys Godwin Krys Godwin, Director Legal Publication, The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399 850-561-5706

From: Walker, Francine Sent: Friday, September 15, 2017 11:01 AM To: 'Sigler, Eunice' ; Waters, Robert ; Godwin, Krys Cc: Karen Levey ; SC‐FCPIO Subject: RE: FYI ‐‐ Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

2 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 175 of 185 You can call Krys Godwin who staffs RJA to discuss further but she told me the extension to the 20th is the current plan. 1‐850‐5706.

From: Sigler, Eunice [mailto:[email protected]] Sent: Friday, September 15, 2017 10:31 AM To: Waters, Robert Cc: Karen Levey ; Walker, Francine ; SC‐FCPIO Subject: Re: FYI ‐‐ Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

I just saw that some of our members' circuits have requested or are going to request extensions.

Craig, would it be appropriate for you as Exec Director of FCPIO to write to the chair and ask for an extension for all Florida courts? I don't think that would pose any problems for our individual members.

I'm not sure that a Wednesday extension will be enough time ‐ an additional week would be better ‐ but I'll take it if it's all we can get.

E.

Sent from my iPhone ‐ please excuse any typos as this was typed on a tiny screen. Thank you.

On Sep 15, 2017, at 10:08 AM, Sigler, Eunice wrote:

Hello All,

This was something we were planning to discuss during our September call, but then Irma happened.

Here are the thoughts I would have shared with you all during that call:

My initial thoughts on this were that each circuit's chief judge and TCA could potentially have vastly differing feedback on the proposed changes, making it virtually impossible for FCPIO as a whole to have one single response. Or at the very least, it would put individual FCPIO members in awkward positions if FCPIO's response was different from their own circuit's response.

Therefore, I would have proposed that each circuit provide their own feedback to the Rule changes if desired ‐ much like each circuit provided individual feedback to the Communication Plan when it was being drafted.

I agree with Craig, though, that we really have no way to discuss this and reach a decision by today's deadline given the disruptions caused by Irma, and some of us (like myself) still closed and not back to full operations yet.

It would be great if the deadline for a response could be extended due to the statewide impact of this storm.

Those are my .50 cents,

E.

Sent from my iPhone ‐ please excuse any typos as this was typed on a tiny screen. Thank you.

3 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 176 of 185

On Sep 15, 2017, at 9:42 AM, Craig Waters wrote:

I don’t know if the corporation can reach a decision in time with the disruption caused by the hurricane. The deadline is today. Eunice, any thoughts?

Craig

From: Karen Levey Sent: Friday, September 15, 2017 9:11 AM To: Craig Waters ; Walker, Francine ; SC‐FCPIO Subject: RE: FYI ‐‐ Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

Good morning, everyone.

I hope everyone survived the storm with minimal impact.

Circling back on this issue. What was decided? Is FCPIO preparing a response?

Thanks.

Karen

Karen Levey | Chief Deputy Court Administrator | Ninth Judicial Circuit 425 N. Orange Ave., Suite 2130 | Orlando, Florida 32801 407.836.2047 (o) | 407.325.7781 (c) | 407.835.5139 (f) [email protected] www.ninthcircuit.org

Please note that the fastest way to receive a response is via e-mail. Voice mail messages may not be checked until the end of the day.

From: Craig Waters [mailto:[email protected]] Sent: Thursday, August 24, 2017 1:28 PM To: Walker, Francine ; SC‐FCPIO Subject: RE: FYI ‐‐ Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

TO ALL FCPIO MEMBERS:

It is important that you review the proposal. It suggests changes to the rule governing cameras and similar recording devices in your courtrooms.

I also would like to suggest that, if the membership reaches consensus on the proposal or believes it has faults that need to be corrected, we might wish to consider how we would like to approach the issue.

4 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 177 of 185 FCPIO has never considered filing its own brief in the Florida Supreme Court in a rules case affecting media access. But we potentially could do so in our role as a separate professional association incorporated under the Laws of Florida and duly qualified as a nonprofit 501(c)(3) corporation under federal law.

Or we could choose to confine our role to suggesting changes through the judges’ conferences that already exist.

In any event, FCPIO has an obvious interest in the Rules of Court governing public records and media access. At some point the corporation will need to decide what our role ought to be when proposed amendments to these rules arise.

Craig Waters

From: Walker, Francine [mailto:[email protected]] Sent: Thursday, August 24, 2017 1:12 PM To: SC‐FCPIO Subject: FYI ‐‐ Proposed amendment to RULE 2.450 TECHNOLOGICAL USE OF ELECTRONIC DEVICES FOR AUDIO AND VIDEO COVERAGE OF JUDICIAL PROCEEDINGS

Attached please find a proposed revision of Florida Rule of Judicial Administration 2.450 published in The Florida Bar News August 15 edition. As the notice says, comments will be accepted until Sept. 15, 2017.

Francine Andía Walker, APR, CPRC Director of Public Information & Bar Services The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399 Direct: 850‐561‐5762 Cell: 850‐321‐7846

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure. This email may contain confidential information that is protected under Florida Law and/or HIPPA and not subject to public records. Use or disclosure of this information may be restricted. If you believe you have received this information in error please contact the sender.

5 October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 178 of 185 601 South Boulevard, Tampa, FL 33606 ph 813-984-3060 fax 813-984-3070 toll free 866-395-7100

South Florida LOCICERO 915 Middle River Drive, Ste. 309, Fort Lauderdale, FL 33304 ph 954-703-34 16 fax 954-400-5415

www.llolawfirm.com

Carol Jean Locicero Direct Dial: (813) 984-3061 [email protected]

Reply to: Tampa

September 15, 2017

VIA ELECTRONIC MAIL ([email protected])

Mr. Judson Cohen Chair, Rules of Judicial Administration Committee Weinstein & Cohen, P.A. 141 25 N.W. 80th Avenue, Suite 400 Miami Lakes, FL 33016-2350

Re: Proposed Amendments to Florida Rule ofJudicial Administration 2. 450

Dear Chairman Cohen:

Thomas & LoCicero represents a coalition of news media organizations and open government advocacy groups that includes: (1) The Associated Press; (2) Cox Media Group (owner of The Palm Beach Post and WFTV (Orlando)); (3) the First Amendment Foundation; (4) the Florida Press Association; (5) Gannett Co., Inc. (owner of Florida Today (Melbourne), the Pensacola News Journal, the Naples Daily News, the News-Press (Fort Myers), the Tallahassee Democrat, and the Treasure Coast Newspapers); (6) Hearst Communications Inc. (owner of WESH (Orlando), WMOR (Tampa), and WPBF (West Palm Beach)); (7) The McClatchy Company (owner of the Bradenton Herald, El Nuevo Herald, and the Miami Herald); (8) Nexstar Media Group, Inc. (owner of WFLA (Tampa) and WMBB (Panama City); (9) Scripps Media, Inc. (owner of WFTS (Tampa), WFTX (Fort Myers-Naples), and WPTV (West Palm Beach); ( 10) TEGNA Inc. (owner of WTSP (Tampa) and WTLV/ WJ.XX(Jacksonville)); and ( 11 ) WTVT FOX 13 (Tampa) (hereinafter, the "Coalition"). We write on the Coalition's behalf in support of the proposed amendments to Rule 2.450, which governs the use of electronic devices for the coverage of judicial proceedings. As you may be aware, through our law firm, the Coalition has been actively engaged in the amendment drafting process, providing input to the relevant subcommittee.

Accurate and timely reporting on our state's court system is crucial to keeping the public informed and ensuring transparency in the judicial system. Covering courts, therefore, lies at the core of the Coalition's public surrogate mission. The proposed amendments are a necessary update to current Rule 2.450 as they recognize the massive teclmological shift to media platforms and devices that can provide near real-time information to the public. Smartphones,

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 179 of 185 Mr. Judson Cohen September 15, 2017 Page 2

tablets, social media platforms, and laptop computers have become standard equipment fo r today's "mobile newsroom" journalists. The proposed amendments recognize that such technology are now the standard "tools of the trade," and the Coali tion believes the proposed amendments strike the proper balance between all owing the public to stay abreast of unfolding events in the courtroom and maintaining proper courtroom decorum. The rule change will also eliminate the patchwork of inconsistent administrative orders dealing wi th electronic devices. We anticipate the amend ed rule will provide much-needed guidance, statewide consistency and practical advantages to the courts, journalists and, ultimately, the public.

The Coalition, therefore, urges the adoption of the proposed amendments to Rule 2.450. Please let us know if we can be of any additional assistance as these amendments are considered.

Very truly yours,

THOMAS & LOCICERO PL

CJL/tmg cc: Krys Godwin (kgodwin@floridabar. org)

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September 22,2017

Mr. Judson Lee Cohen Chair, Rules of Judicial Administration Committee 14125 NW 80th Ave., Ste. 400 Miami Lakes, FL 33016-2350 Sent electronically via email to: [email protected]

Re: Comment on Proposed Amendments to Rule 2.450, Use of Electronic Devices

Dear Mr. Cohen:

On behalf of the Ninth Judicial Circuit, I submit this Comment concerning the proposed amendments to rule 2.450, Technological Coverage of Judicial Proceedings. Our Circuit recognizes rule 2.450 is outdated and requires revision. The rule includes old technology the media no longer use. Technology has advanced faster than the rules can keep pace. This Circuit also recognizes that crafting a definition of media is extremely challenging in today's world and understands the Committee faced a difficult task. The proposed amendments, nevertheless, are not simple procedural updates or mere refinements to the rule. Rather, they represent a major transformation of long-standing court policies and procedures. Instead of a rule regulating media coverage of court proceedings, the proposed amendments allow the media, as well as spectators, the ability to audio and video record court proceedings simply by using a cell phonet. These amendments could have dire and unforeseen consequences. Our Circuit is unaware what has changed to require such a sea change in policy. Mere advancements in technology should not undermine the respect due to courts of law or reduce the solemnity of court proceedings. In today's environment, the Courts are struggling with pressures that undermine respect for the sanctity of its proceedings. These amendments will only add to that struggle. We strongly urge the Committee to reconsider its proposed amendments and to allow additional time for interested persons to comment more fully. In

I While this Comment uses only the words "cell phone," it is intended to include all forms of electronic devices and the use thereof as defined in the proposed amendment under paragraph (a).

October 13, 2017 Rules of Judicial Administration Meeting Agenda Page 181 of 185 Mr. Judson Lee Cohen September 22,2017 Page Two

the Ninth Circuit, the more the Judges and court staff discussed these amendments, the more concerns arose. Due to time constraints, however, these comments are a minimum recitation of initial concerns and if given another opportunity, we would be able to provide a more in- depth analysis of the potential pitfalls we envision.

It is my understanding some Committee members proposed permitting everyone to use their cell phones to record court proceedings based on the concem that not doing so would violate First Amendment rights. Please note, though, the current provisions established by the rule and implemented by the various courts have withstood the test of time and are entirely consistent with the First Amendment. The Supreme Court of the United States and all federal courts do not allow broadcasting their proceedings and in many instances, do not even allow cell phones in the courtroom or the courthouse. Our own Supreme Court of Florida restricts how its proceedings are broadcast and does not allow cell phones into the courtroom. Are these courts violating the First Amendment? Florida was one of the first courts in the nation to allow cameras in the courtroom. Surely, Florida courts, within the guidelines of the present ru|es, comply with any First Amendment concerns. It is my understanding, based on limited research, that the First Amendment guarantees a right to observe the proceedings, not a right to video the proceedings. See In Re Petition of Post-Newsweek Stations, Florida, 1nc.,370 So. Court of the United States has recognized the distinction 2d762 (Fla. 1979). The Supreme *It between the right to view court proceedings versus the "right" to broadcast the proceeding. is said however, that the freedoms granted in the First Amendment extend a right to the news media to televise from the courtroom, and that to refuse to honor this privilege is to discriminate between the newspapers and television. This is a misconception of the rights of the press." Estes v. State of Texas, 381 U.S. 532, 539 (1965). Even though these cases dealt with the media, the concept seems equally applicable to the general public. As stated previously, with more time, this issue can be addressed more precisely and fully.

While the proposed amendments provide some judicial control, the amendments are not clear on how much control a judge has to limit the number of people using cell phones in the cour6oom. The proposed amendments appear to be internally inconsistent. Subsection (b) gives the judge the authority to control the use of electronic devices including the number of devices allowed and the types of devices allowed. The subsection titled, "Standard Governing Court Approval" states "[t]he judge or quasi-judicial officer g@!! allow the use of electronic devices for coverage of the proceedings, subject to the judge's authority to control the manner of their use." (Emphasis added). It is unclear whether every request must be granted because of the use of the word "shall" or whether it is within a judge's authority to limit the use of a device to one person or entity who is then responsible to distribute copies of the proceedings to others. This Circuit expects there will be times when twenty or more people, including members of the traditional media, will request to use a cell phone to video the proceedings. Obviously, allowing twenty or more people to sit in court with their cell phones raised towards litigants, jurors, witnesses, and other court participants would greatly lessen the decorum and solemnity of the court, without even considering the intimidation

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factor. The amendments are not clear that it is within the judge's authority to limit the use of cell phones to one or a few people. This is one area where more consideration and re-writing of the amendments is required.

Concerning the subsection titled, "Approval Before Use of Electronic Devices for Audio or Video Coverage," there is no direction specifying how a person wishing to use an electronic device obtains a judge's approval. This Circuit recommends adding a requirement that a motion be filed in advance of the proceeding requesting approval to use an electronic device. Blank forms could be readily available in every courtroom and on the courts' websites. In this way, the request can be properly memorialized and the judge can deal with the request in a tirnely manner. Having to deal with an oral request immediately prior to a proceeding, or worse, during a recess, is distracting to the judge, court deputies, and other participants. Further, if a judge is required to deal with requests during recesses, this will lengthen the time required for recesses, and thereby lengthen the entire trial because trial participants, most noiably court reporters, clerks, and court deputies, will still require a reasonable break during the trial. If a request to use an electronic device is heard during a recess, the litigants, the court reporter, trial clerk, court deputy, and judge must remain to deal with the issue and only then can an actual recess occur. This process will inevitably lengthen jury trials and add additional pressure to find jurors who can commit to longer trials.

Once word spreads that cell phones are allowed to be used in court, requests to use cell phones will occur on a daily basis. The judicial time involved in dealing with these requests will be increased greatly and will compound the already lengthy daily docket. Not only will requests increase the time involved in each proceeding but the denial of a request will add significant time to a judge's workload. As proposed, subsection (e) requires an evidentiary hearing when any person is denied use of an electronic device "for any reason other than disruption of the proceeding or failure to obtain prior approval . . . ." As read, this means that if four spectators request to record the proceedings with their cell phones and the judge allows one person to record but not others, not based on disruption of the proceedings, an evidentiary hearing will be required to address the other individuals' requests. This Circuit regularly receives requests from the general public to video various proceedings and it anticipates that this requirement alone will greatly increase the burden on the Court.

At least two proceedings preclude media broadcast - termination of parental rights proceedings and adoptions. The use of the word "shall," gives the impression that every proceeding can now be video recorded. Specific exceptions should be included in the paragraph. While I believe this issue was discussed by the Committee, this Circuit believes language should be included clarifying this matter especially now that the general public will be allowed to use electronic devices if the amendments are approved as written.

As discussed above, the most profound, and arguably, revolutionary change in the amendments is the proposal to allow anyone to record proceedings with their cell phones. Cell phones are ubiquitous in modem society. Many consider them a necessity. Simply

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sample Facebook, YouTube, or Instagram to understand that many people use their cells phones to document and broadcast the most basic and mundane tasks of daily living. It is to see "selfies" at almost any and all locations so the persons taking the selfie can "o*111on.,prove" or show they were there or to let their friends know what they are doing at that moment. Allowingthe use of cell phone photos or video in the courtroom will be no different. One can envision friends and families of witnesses or litigants taking photos or videos simply to post on some social media site to say, "Hey, look, my friend is testiffing in a court!" or ,.Look where I am today!" Additionally, conventional media now rely on the use of reporters' cell phones to cover proceedings instead of more cumbersome professional cameras, so the requests to use cell phones will not be just from the public but from the traditional media as *it. Furthermore, thr."qu.rts to use cell phones is not and will not be a rare or unusual occurrence. In the Ninth Circuit, as is most likely in a number of circuits, media coverage occurs on a daily basis in several courtrooms over several courthouses throughout this Circuit, including at the secured courtrooms located in the Orange County Jail. Weekly, if not daily, court deputies receive requests from members of the public to use their cell phones to video or record rourt pro..edings. Additionally, without the requirement of a pre-trial motion, anyone can show up at any point in a trial and demand the judge conduct a hearing on his or her request to record, alleast during a recess. There is no way to know how long a trial actually wiil take if individuats can constantly demand hearings in the middle of trial to obtain a ruling on their request to record.

The Circuit is very concerned with having no actual control over what a person can video. The media, at least, have some interest in conectly portraying court proceedings and they have traditionally abided by the individual judges' requests. Members of the general prbli. may not be concerned with such requests and may video proceedings or places that would greatly jeopardize court security, among other things. For example, a person could video tfr..o.nt deputies' security procedures, such as the number of deputies used in each courtroom, how they handle a defendant, where the security cameras are located, and even video the holding cell area when a door opens to bring defendants in and out of the courtroom. Additionally, there is no method to control non-media people editing the video to misrepresent what took place in court and posting it on social media. Allowing non-media persons to film proceedin[s simply paves the way for misinformation, bullying, and intimidalion. This 'Circuit tras Areiai experienced such an event. A husband involved in a litigious dissolution proceeding hired a media production company to film his divorce trial. The media company attemptedL obtain mediacredentials without telling court administration it was hired by the husband. It was his intent that the camera would focus entirely on the wife during the proceedings to intimidate her. Luckily, it was discovered before trial that the husband had irired the media company and no credentials were issued. This Circuit can foresee the same or similar situations happening in the future, i.e., one litigant has someone request permission to film the proceedingi iimpti to bully or threaten the opposing litigant. Another highly likely gang member. This situation involves lang members videoing the jurors on a trial of another would be extremety inii-iOuting to jurors. This Circuit already experiences issues with obtaining jurors and this would add to the problems. Additionally, this Circuit has actually

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experienced gang members surreptitiously filming a witness testiffing in a fellow gang member's trial and posting the video on social media platforms while encouraging violence against the testiffing witness. If videotaping becomes common, this Circuit feels certain that w-itnesses wouldrefuse to cooperate during prosecutions or even appear in court. This Circuit has grave concerns with allowing the general public to simply use their cells phones to record pro."edings. Monitoring who is videotaping what in the courtroom would fall primarily "ooion court deputies who already have responsibilities to focus on the actual proceedings to ensure the safety of the judge, witnesses, jurors, attorneys, and the public. Monitoring spectators to observe whether they are recording security measures or other prohibited items would create unbearable pressure on deputies and bailiffs.

The Ninth Circuit does not believe the rule is complete as proposed nor is it necessarily clear-cut on why certain proposals are necessary. This Circuit has had a media administrative order containing a definition of media that has worked well for over two years. There have been no challenges by either the media or the general public to this Circuit's policy. The Circuit anticipaies considerable litigation arising from the proposed rule in order to more fully develop its framework and further refine the rule's procedures and requirements. On behalf of the Ninth Circuit, we urge the Committee and the Supreme Court of Florida, if the rule is submi6ed as is, to carefully and thoroughly review the proposed amendments. As the Supreme Court of the United States has stated:

Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance ofthis high function. We have always held that the atmosphere essential to the preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all costs.

Estes v. State of Texas, 381 U.S. 532, 539 (1965).

Frederick J.Lauten ChiefJudge

cc: Krys Godwin at [email protected]

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