APPENDIX F APPX. F-1

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1 APPENDIX F APPX. F-1

2 Ellen, I'm forwarding this to you for consideration by the civil procedure rules committee of the civil cover sheet. Let me know if you have any questions. Thanks Jodi Jennings Director, Legal Publications The Florida Bar Forwarded by Jodi B Jennings/The Florida Bar on 03/13/ :34 PM From: Murray B. Silverstein [mailto:msilverstein@shutts.com] Sent: Wednesday, January 18, :20 AM To: 'Keith Park'; jjenning@flabar.org Cc: Paul Regensdorf Subject: FW: another efiling concern -- confidentiality Keith and Jodi, I believe you ve both seen the below string regarding the likely continued paper filing of some documents, particularly in the criminal law arena. I ve included below my observation regarding civil cover sheets and the RJ! rule on attorney signatures, which, perhaps, should be reviewed for consideration of a simple amendment to both to include counsel certification of compliance with confidentiality (2.420) and minimization (2.425). I d be happy to assist you with this issue if the committee believes it s important enough to pursue. See you both at our upcoming meeting. Thank you. Murray B. Silverstein Partner Shutts & Bowen LLP 4301 W. Boy Scout Boulevard, Suite 300 Tampa, FL Direct: (813) Fax: (813) Mobile: (727) Biography V-Card Website Please consider the environment before printing this We have moved. Please note our new address. From: Murray B. Silverstein Sent: Monday, January 16, :39 AM To: 'Laird A. Lile'; Judge C. Alan Lawson; R.B. "Chips" Shore Cc: Judith Kreeger (gmail); Paul Regensdorf; bill_eddins@sa01.org; Thomas D. Hall; Chris Blakeslee; Lakisha Hall; Jenna Simms; OSCA-FCTC; alan.abramowitz@gal.fl.gov; Alicia.Guerra@gal.fl.gov; APPX. F-2

3 Melvin Cox; Judge Don Scaglione; James B. Jett; Judge Judith L. Kreeger; Karl Youngs; Ken Kent; Alan Neubauer; Randy Long; Judge Scott Stephens; Jodi Jennings Subject: RE: another efiling concern -- confidentiality Two quick observations/comments on agreement with Judge Lawson and Laird and why we donũt need to make this harder: 1. Fla. R. Civ. P. Form Civil Cover Sheet. This will continue to exist in the paper world, even after e-filing becomes mandatory until we can recommend a timed phase out. This form, subject to approval by Civil Rules and Rules of Judicial Administration Committees, can be the proper place to include the certification of compliance with confidentiality under RJA and minimization under RCP 2.425, which is what FCTC already approved for e-portal filings at our September meeting. 2. Sanctions/ Following Judge LawsonŨs comment, we already have RJA (Signature of Attorneys and Parties), which, in sub ſaƀ states that. ũthe signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other paper- that to the best of the attorneyũs knowledge, information, and belief there is good ground to support it- and that it is not interposed for delay0ū This has been described as the rough state counterpart to Fed. Rule 11. Again, through RJA, the present rule, if need be, can be amended to include certification of compliance with confidentiality and minimization for all filings, whether paper or electronic. While I agree with Chips, for the most part, this is the ultimate responsibility of the attorney-filer, and should not become an added burden to clerks. Murray B. Silverstein Partner Shutts & Bowen LLP 4301 W. Boy Scout Boulevard, Suite 300 Tampa, FL Direct: (813) Fax: (813) Mobile: (727) APPX. F-3

4 APPENDIX G APPX. G-1

5 From: Ralph Artigliere Sent: Sunday, July 04, :11 PM To: Donald E. Christopher Cc: Bill Hamilton; Subject: Anomaly in Rule Sanctions Hello Don. I hope this finds you well. Congratulations on becoming Chair of the Civil Rules Committee. I have a Civil Rules issue (anomaly?) that I would like to call to your attention. As you probably know, the "somewhat mandatory" discovery sanctions under Rule may be lifted by the court under certain circumstances. One of those, for example, is "substantial justification" for the behavior of advancing a protective order and losing (Rule 1.280(c) refers to Rule 1.380(a)(4) for sanctions). However, if you read 1.380(a)(4), the person unsuccessfully advancing a motion for protective order avoids sanctions if the motion was "substantially justified" and the person opposing the motion avoids sanctions when the motion is granted but the opposition was "justified." Is there supposed to be a difference? Federal Rule 37 from which these provisions were taken has "substantially justified" for both. In fact, every instance in the Federal Rule on sanctions uniformly uses "substantially justified." I do not see any reason for a distinction in our state rule, and it can be confusing. If the Florida rule intends a distinction, which one is the higher burden, justification or substantial justification? I could make arguments both ways. The matter gets even more complicated because "justified" appears elsewhere in Rule 1.380(b) and 1.380(d). Were those meant to be different from the substantial justification in 1.380(a)(4)? I attach the relevant rules with the questionable language highlighted. I am co-authoring a book on ediscovery with Bill Hamilton. I am responsible for the chapters covering these rules, and I would really like to know if this is an intentional distinction and, if so, why was it made and how do the differences impact the burden? I doubt this is an intentional distinction. I think this may be a matter for scriveners correction of Rule If you need clarification or more information, please let me know. Also, if there is anyone else I need to send this to in order to advance this matter for consideration by the Rules Committee, please let me know. I look forward to hearing from you. Ralph Artigliere skywayra@tds.net APPX. G-2

6 APPENDIX H APPX. H-1

7 TO: Corinne Hodak, Chair August 28, 2007 FROM: Ralph Artigliere RE: Judicial Communication with the jury: Do we need a Rule? One of the subjects that I teach in judicial education courses is jury communication, including the rules and issues regarding contact between judge and jury. The civil rules lack clear direction regarding the prohibition of ex parte judicial contact with the deliberating jury. See Rules 1.431, 1.470, and Form Unlike the criminal rules, our rules of civil procedure do not specify the manner in which a judge handles a deliberating jury/juror question. See Fla. R. Crim. Pro (requiring the judge to inform counsel before giving additional instructions). The opinion of (then) Judge Pariente in Sears, Roebuck v. Polchinski 636 So. 2d 1369 (Fla. 4 1 h DCA 1994), states the law in this area. In criminal cases, ex parte judicial contact with a jury directly or through the bailiff is per se reversible error. In civil cases, the courts "strongly disapprove" ariy ex parte communication with a deliberating jury or between the bailiff and a deliberating jury without the formality of presenting the question in open court on the record with both sides present. 636 So. 2d at Although the fact that an ex parte communication occurred in a civil case is not per se error, prejudice is presumed and the burden is on the party seeking to uphold the verdict to demonstrate harmless error. 636 So. 2d at Our civil rules are crafted to ensure a proper record, justice for all sides, and the preclusion of or remedy for prejudice. A civil rule requiring that a request of the jury as to law or facts of the case be vetted to the parties on the record and the court's response be placed in the record as well is supported by Polchinski and like cases. Permitting the judge or bailiff to field questions on substantive matters without the knowledge of counsel for both sides and "off the record" creates the potential for injustice and could be remedied with a rule that requires all jury communications during deliberations on substantive issues be made of record and that counsel should be aware of the questions before the judge responds. That is the way I hanc;lle all jury communication in civil and criminal cases. Anecdotal information, and cases like Polchinski. indicate that some judges communicate directly or through the bailiff. and communications extend to issues of importance like jury requests for clarification of the law (Polchinski). It is an abuse of discretion when a juror question indicates confusion on the law for a trial judge to not ameliorate corifusion. 636 So. 2d at 1371 and cases cited. How can counsel deal with, or even know about, such an inquiry if the judge deals with the issue through the bailiff and the communication is ex parte? APPX. H-2

8 In the case of Life from the Sea v. Levy, 502 So. 2d 473 (Fla. 3d DCA) rev. denied, 509 So. 2d 1118 (Fla. 1987), the appellate court found the error of ex parte contact to be harmless where the trial judge received a note from the jury asking for clarification of the law and the judge responded by note denying the request. However, in that case, both notes were placed in the record, allowing the appellate court to weigh the issue prejudice. The opinion contains the following paragraph: The overwhelming weight of authority, which we choose to follow, Is that where a trial judge's ex parte communication w ith a jury in a civil case does not affect any substantial rights of the parties, the error will be deemed harmless. A complaining*475 party thus must demonstrate specific prejudice, which might include a showing of an Inability of the reviewing court to determine from the record whether the action was actually harmless. Loatman v. Patillo. 401 A.2d 91 (Del.1979); Beck v. Wessel. 90 S.D N.W.2d 905 (1976) (affirming a judgment where the jury had asked the trial judge if he could give them certain information and he responded "no"). See also Nelson v. Hydraulic Press Mfg. Co.. 84 III.App.3d III.Dec. 422, 404 N.E.2d 1013 CApp. 2d Dist.1980) (moving party must demonstrate specific prejudice before a jury verdict will be set aside as a result of an unauthorized communication with the jury); Fordvce v. Hansen. 198 Mont. 344, 646 P.2d 519 (1982) (the ultimate inquiry is whether the Irregularity affected the substantial right of the party). The foregoing quote demonstrates the problem of not proscribing ex parte contact. The reviewing court must have a record from which to determine whether the error is harmless. Seldom is ex parte contact between judge (or bailiff) and the jury made "of record" or even disclosed to the parties. By the wording of Levy and cases cited, ex parte contact is "error," it is "unauthorized," and it i's an "irregularity." Ergo, I submit it is incumbent o n our rules to clearly prescribe the manner in which contact with the jury be had (whether deliberating or not) and that counsel be informed of all juror questions, even if the judge's decision is to not answer a question. This is more important now than ever. Current cases (Polchinski and Morgan International Realty v. Dade Underwriters, 571 So. 2d 52 (Fla. 3d DCA 1990)) and jury innovations recommendations call for judges to be as responsive as possible to juror questions on facts and law. Attached are the Polchinski case, the Levy case, and the criminal rule. If you think this is an issue the Civil Rules Committee should take up, I would be willing to assist or be part of the subcommittee. cc: Madelon Horwich ( APPX. H-3

9 APPENDIX I APPX. I-1

10 -----Message from Keith Park on Thu, 18 Aug :38: Kevin Johnson To: "ariema cc: "'Mark A. Romance"' Subject Proposed rule Kevin, Concern has been raised regarding FRCP Rule and its potential conflict with RJA Rule an Do you know whether an effort was made to harmonize with 2.530? If that effort has not been made, I respectfully suggest that the Civil Rules subcommittee which addressed rule (or other appropriate subcommittee) should review any potential conflict with At the very least, definitional issues may exist and my initial reaction is that rule may need additional work so that it is in harmony with rule You may recall that a proposed change to Rule 2.530(d) went up for approval during this last cycle to allow either agreement of the parties or an applicable rule of court to determine the use of communications equipment. (It is anticipated that the Supreme Court will approve this proposal or the concept of the proposal, but the rule has not yet been amended.) I believe that the idea behind rule was to make use of this proposed exception under defined circumstances. However, it is suggested that rule needs to also take into consideration the other portions of rule as part of its underlying framework/terminology and it does not appear that this evaluation occurred. Although the Rules of Judicial Administration have priority over other rules, if the Civil Rules Committee reviews the issue and concludes that rule should be amended, I do not wish to discourage looking at the "broader picture". At some point, it may well be appropriate to establish an ad hoc subcommittee composed of members of both Civil Rules and RJA to look at this issue. For the present, however, the first option should be to try, if possible, to harmonize rule with rule It is my hope that perhaps the Civil Rules Committee could make additional reviewicomparison of these 2 rules in time to consider any possible amendments to rule at the June APPX. I-2

11 meeting. As part of the overall process, the RJA will at the same time have a subcommittee consider any possible changes to rule that may be appropriate. I am assigning this task to RJA Subcommittee C, which is chaired by Mark Romance. Should you have questions or comments regarding any aspect of this matter, please feel free to call me at your convenience. This message is intended for the sole use of the person or entity to which it is addressed and may contain information that is privileged and confidential, the disclosure of which is governed by applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of ths information is STRICTLY PROHIBITED. If you have received this message in error, please notify the sender immediately and arrange for the return or destruction of these documents.thank you for your cooperation. APPX. I-3