IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA IN RE: IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE; THE FLORIDA RULES OF CRIMINAL PROCEDURE; THE FLORIDA PROBATE RULES; THE FLORIDA SMALL CLAIMS RULES; THE FLORIDA RULES OF APPELLATE PROCEDURE; AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE CASE NO.: SC CORRECTED RESPONSE TO COURT S MAY 19, 2010 ORDER 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, 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 corrected report in response to the Court s May 19, 2010, order in the above case. Fla. R. Jud. Admin has been corrected in Appendices B and C to add subdivisions (d) and (e). With the agreement of all of the committee chairs, John F. Harkness, Jr., Executive Director, The Florida Bar and Katherine E. Giddings, Chair, Rules of Judicial Administration Committee are signing this report on behalf of all of the committees. By order dated April 1, 2010, the Court sought clarification and input from the rules committees and the Access Subcommittee on the consistency of recommendations from the committees on redaction and truncation of personal information in documents being filed with the courts. The rules committees filed responses specific to their individual rules and the Access Subcommittee proposed creation of Florida Rule of Judicial Administration 2.425, which would govern filing of personal information in all types of cases. The Court then directed, in a May 19, 2010, order, that the rules 1

2 committees consider and comment on the Access Subcommittee s proposal. The Rules of Judicial Administration Committee was directed to consider the Access Subcommittee s proposal and the other rules committees were directed to propose amendments to their bodies of rules should Rule be adopted. The original date for filing comments was July 1, Following a Motion for Extension of Time, the rules committees were given until October 15, 2010, to file comments, and the Access Subcommittee was given until November 1, 2010, to file a response. Each rules committee formed a subcommittee to consider these issues. An ad hoc committee with representation from each committee was formed to coordinate each committee s response. The resulting proposals are as follows: Background/History Florida Rule of Judicial Administration Pursuant to the Florida Supreme Court s concern about the filing of unnecessary information, this proposal is the culmination of a concerted attempt by the Access Committee and all of The Florida Bar rules committees to address the problem. Although several of the committees made recommendations for separate rules on the subject, it was ultimately determined that the best way to deal with the issue was to create one basic rule and make it part of the Rules of Judicial Administration. Prior to substantial revision, the original Access Committee proposal was patterned after Federal Rule of Civil Procedure 5.2. General Purpose The concept and purpose of this rule is to prevent the filing of unnecessary information. Based on public access to all nonconfidential court filings, the heart of this rule is to attempt to prevent the filing of needless data. Given that the court loses much of its control over information after a document has been filed, it is important to exercise control of the information before a document is filed. Accordingly, the rule has two primary functions: 1) set forth the categories of items which must be 2

3 truncated before filing; and 2) allow exceptions for the filing of complete data in appropriate circumstances. Unquestionably, at least some of the information affected by this proposal is also information that may be confidential and subject to Fla. R. Jud. Admin (d) if such information is filed. This is not viewed as a conflict. This proposal only addresses the format for filing unnecessary data; it does not address confidentiality or public access to documents which have already been filed. As under Rule 2.420(d), the burden is on the filer of information to take action. Subdivision (a) Rather than place the addressed items in a string, the individual items have separate subdivisions for clarity. It should be noted that the filing of truncated versions of data is not required when inclusion of the data is authorized by statute, another rule of court, court order, or subdivision (b). Subdivision (a)(1) and (a)(2) These items were part of the Access Committee s proposal and they are also contained in Fed. R. Civ. P Subdivision (a)(3) From a format perspective, this subdivision is somewhat controversial. Although the standard business and banking practice is to use the last 4 digits of such numbers, this proposal totally eliminates the filing of such numbers when they serve no useful purpose. These five items are deemed to be exempt for confidentiality purposes and are the subject matter of sections and (5)(a) and (5)(b), Florida Statutes, and Rule 2.420(d), as amended. Given that these five items all enjoy exemption protection, it was thought that the best alternative was to require that no portion of such a number be filed, as opposed to allowing the filing of a truncated version. Although the Rules of Judicial Administration Committee was very concerned about maintaining a consistent approach or formula for filing numbered information as set forth in subdivision (a)(4), the overriding 3

4 concern was potential conflict with the confidential status of filing even a portion of such a protected number. In response to the argument that such account numbers need to be at least truncated for identification purposes, it should be noted that the filing of no portion of these five protected numbers is only applicable when the filing of the numbers is unnecessary; the number or any portion of the number can be filed as set forth at the beginning of subdivision (a) if authorized by statute, another rule, or a court order. Additionally, as set forth in subdivision (b), the entirety of the protected numbers could be filed if a particular account number is the subject of a proceeding (subdivision (b)(1)), or the information is relevant and material to an issue before the court (subdivision (b)(9)). In such circumstances, the filer may need to comply with rule 2.420(d). Subdivision (a)(4) The list in subdivision (a) is intended to be inclusive. The Rules of Judicial Administration Committee felt that it would be better to err on the side of listing too many items rather than leaving a critical item off of the list. However, home address was dropped from the original list because it is relatively easy to obtain and not normally sensitive information; home address information is commonly found in services of process, subpoenas, and witness lists. A financial account listed at (a)(4)(f) is a catch-all phrase that is also used in Fed. R. Civ. P Given the general nature of the item, it was thought best to retain this reference designation and except such numbers that are not to be listed at all due to confidentiality requirements. Customer account number listed in (a)(4)(j) is another catch-all phrase that was deemed worthy of protection. Subdivision (a)(6) Item (a)(6) is another catch-all. In the event that the rule fails to list something, a new form of data comes into use in the future, or unique information is peculiar to a pending case, the matter can be handled by a court order. 4

5 Subdivision (b) The exceptions in subdivision (b) are for the most part selfexplanatory. It is noted that merely because an exception exists for the filing of information in its entirety, this exception does not excuse compliance with Rule if the information is confidential. Subdivisions (b)(1), (b)(2), and (b)(3) These provisions were contained in the Access Committee s proposal. Subdivision (b)(1) is broader than Fed. R. Civ. P. 5.2 and anticipates that a case may involve a type of account number listed in subdivision (a).. Subdivisions (b)(4) through (b)(6) These provisions were requested and suggested by the Family Law Rules Committee. Subdivision (b)(7) This provision was requested by the Fast Track Subcommittee for the Criminal Procedure Rules Committee. The Criminal Procedure Rules Committee voted 24-0 in favor of this rule at its September 24, 2010, meeting. This subdivision also has been widely supported by both prosecutors and defense attorneys, and The Fast Track Subcommittee is in the process of attempting to obtain additional input from other interested groups. This blanket exception remains controversial among some other committees. Although the blanket exception was provisionally accepted by the Rules of Judicial Administration Committee, lingering doubts exist regarding the need for such a broad exception. Subdivision (b)(8) The provision is self-explanatory. Subdivision (b)(9) 5

6 This provision is intended to operate as a catch-all to allow necessary information that does not fit within the other exceptions to be filed. Subdivision (c) This subdivision provides for remedies and sanctions if subdivision (a) is violated. The trial court is given discretion to fashion a proper remedy or sanction. Subdivision (d) This subdivision is self-explanatory and is a carry-over from Fed. R. Civ. P. 5.2 and the Access Committee s proposal. Subdivision (e) The purpose of the application subdivision is to clarify the intent of the rule and that the rule is not intended to interfere with public access or confidentiality. The Rules of Judicial Administration Committee did not want a filer to use subdivision (b) of this rule as a potential excuse to evade the requirements of Rule 2.420(d). Appellate Court Rules The Florida Bar Appellate Court Rules Committee ( ACRC ) discussed the proposed Rule of Appellate Procedure 9.050, as well as the various other proposed rules addressing the handling of personal information in court filings. In an effort to avoid conflicts and confusion in the rules of procedure, the ACRC recommended, and the Supreme Court of Florida adopted, the view that the procedures for the truncation or redaction of personal information should be controlled by proposed Florida Rule of Judicial Administration 2.425, which provides a comprehensive list of personal information that must be excluded from court filings. For this reason, the ACRC amended proposed Rule to cross-reference and adopt the provisions of proposed Rule Additionally, the prior version of proposed Rule contained language stating that the rule does not require redaction of personal data from the record or appendices. However, the ACRC is now of the view that 6

7 appendices should comply with the requirements of proposed Rule The ACRC concluded that, since appendices are prepared by the appellate practitioner, appellate counsel and pro se litigants should ensure that no personal identifying data is included in them, even if that information was not initially redacted from the court record. Of note, the ACRC continues to maintain the view that the redaction provisions of proposed Rule should not apply to the appellate record because it would be impractical for an appellate practitioner to seek to redact information from documents already filed with the lower tribunal and compiled by the clerk for submission to the appellate court. Civil Procedure Rules The Civil Procedure Rules Committee (CPRC) previously proposed Fla. R. Civ. P to attend to the issues addressed by the (now) proposed Fla. R. Jud. Admin In connection with proposing Rule 1.191, the Civil Procedure Rules Committee contemporaneously proposed changes to Rules 1.280(f), 1.310, 1.340, and and committee notes to those rules in the event Rule was approved by the Court. As requested by the Court in its May 2010 order, the committee has reviewed its previous recommendations. Since the Court s May order, the Rules of Judicial Administration Committee has proposed Rule The committee compared the previously proposed Rule to the RJA proposed Rule 2.425, and evaluated the proposed Rule individually. In sum, it appears that much of what was proposed in Rule was reworded or reorganized within the proposed Rule 2.425, although some categories of information were expanded or added. 1. Recommended changes to proposed Rule 2.425: RULE MINIMIZATION OF THE FILING OF SENSITIVE INFORMATION (a) Limitations for Court Filings. Unless authorized by subdivision (b), statute, another rule of court or the court orders otherwise, designated sensitive information filed with the court must be limited to the following format: (1) The initials of a person known to be a minor; (2) The year of birth of a person s birth date; (3) No portion of any 7

8 (A) social security number, (B) bank account number, (C) credit card account number, (D) charge account number, or (E) debit account number; (4) Two asterisks ( ** ) and tthe last four digits of any (A) social security number (BA) taxpayer identification number (TIN), (B) employee identification number, (C) driver s license number, (D) passport number, (E) employee identification number, telephone number, (F) patient or health care number, financial account number, except as set forth in subdivision (a)(3) (G) insurance policy number brokerage account number, (H) customer account number, or insurance policy account number, (I) financial account number including, but not limited to all bank, brokerage, and credit accounts of any type, loan account number, or (J) customer account number (5) A truncated version of any (A) address, (B) computer user name, (C) password, or (D) personal identification number (PIN); and (6) A truncated version of any other sensitive information as provided by court order. (b) Exceptions. Subdivision (a) does not apply to the following: (1) An account number which identifies the property alleged to be the subject of a proceeding; (2) The record of an administrative or agency proceeding; (3) The record or appendices in appellate or review proceedings; (4) The birth date of a minor whenever the birth date is necessary for the court to establish or maintain subject matter jurisdiction; (5) The name of a minor in any order relating to parental responsibility, time-sharing, or child support; 8

9 (6) The birth date of a party in a writ of attachment or notice to payor; and (7) Traffic and criminal proceedings; (78) Information used by the clerk or the courts for case management purposes; and (9) Information which is relevant and material to an issue before the court. (c) Remedies. Upon motion by a party or interested person or sua sponte by the court, the court may order remedies, sanctions or both for a violation of subdivision (a). Following notice and an opportunity to respond, the court may impose sanctions if such filing was not made in good faith. (d) Motions Not Restricted. This rule does not restrict a party s right to move for protective order, to move to file documents under seal or to request a determination of the confidentiality of records. (e) Application. This rule does not affect the application of constitutional provisions, statutes or rules of court regarding confidential information or access to public information. The rationale for these recommendations is as follows: Subsection (a)(3), including subparts. The committee agreed that excluding all social security, bank account, credit card, charge account, and debit account numbers is not practical because it would hamper, if not entirely preclude, an ability to authenticate documents received during discovery and needed in connection with motions to compel, or otherwise during litigation. Moreover, many individuals now have multiple accounts with a single institution, for example, one or more checking accounts, debit accounts, charge cards, etc.. and eliminating a way to distinguish between the accounts would likely do more harm than good. Rather, the committee recommends limiting reference to these types of numbers to using ** followed by the last four digits of the number. This method affords distinction between accounts at the same institution, while still protecting sensitive information. Moreover, virtually all receipts from ATMs, charge card purchases, etc., customarily use the last four digits of an account for identification, so this recommendation is in keeping with what is common business practice outside the legal industry. Thus, the committee s recommended changes serve to merge sections (a)(3) and (a)(4). 9

10 In addition, the committee recommends removal from the list of items to be truncated one s telephone number, as telephone numbers are commonly published and exchanged in business, education, applications, etc. Additionally, attorneys are required to list telephone numbers on pleadings. As such, the subcommittee could not see a reasonable rationale for protecting telephone numbers from filing with the court. The committee recommends merging items (a)(3)(b) (a)(3)(e) and (a)(4)(g) and (a)(4)(i) (bank, credit charge, debit, brokerage, and loan account numbers) within the category Financial account numbers as it seems more appropriate to use a general reference to these types of accounts rather than to unintentionally omit a type of financial account and, thus, create litigation over whether a specific type of financial account is governed by Rule In view of the existing HIPPA laws and interests of privacy, the committee recommends added protection for patient or health care numbers, since historically patient and health care records were kept by, or in a variation of, an individual s social security number, which is protected under the proposed rule. The committee recommends removing the word account from the phrase insurance policy account number as it appears to be redundant. Finally, with respect to subsections (a)(3) and (a)(4), the committee recommends reorganizing the categories as set forth above to make a more logical list of protected information. With respect to subsections (a)(5) and (a)(6), the committee recommends removing both. Subsection (a)(5) appears to be unnecessary since, in the experience of the committee members, this type of information is not generally sought in discovery and, if sought, is generally the subject of a motion for protective order seeking to prohibit release of any of the information to persons without a court order. Subsection (a)(6) appears to be wholly unnecessary since, by the language of subsection (a)(6), a court order would already have been obtained regarding sensitive information and one would expect that the court order would also address the format in which the information is to be provided and/or filed. 10

11 Exceptions. The committee recommends removing traffic and criminal proceedings and Information which is relevant and material to an issue before the court as exceptions to rule. Subsection (a) provides that the redactions are required unless a statute, rule of court, or court order requires otherwise. Thus, it appears a separate exception for traffic and criminal proceedings would be unnecessary since the information used in those proceedings would be required by statute or rule of procedure. Moreover, the subcommittee concluded that those proceedings are likely to have the most personal identifying information, and, thus, would likely be ones in which the protections would be most necessary. As for information which is relevant and material to an issue before the court, the committee concluded that this exception swallows the rule since only information that is relevant and material to an issue in dispute is to be filed with the court. Thus, to allow this as an exception to the rule seems to eviscerate the rule itself. 2. Recommended changes to existing rules: The committee recommends the following changes which, in essence, mirror the May 2010 changes recommended to the Court in connection with proposed Rule 1.191, insofar as the changes are intended only to direct the reader to Rule 1.280(f) and Rule 2.425, as appropriate. Additional changes from previous proposals are shown by strike-outs and double underlines. a. Revise rule 1.280(f) as follows: Rule 1.280(f) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. Compliance with specific mandatory filing requirements of any other rule of procedure shall constitute good cause except that If information obtained during discovery is filed with the Court, dates of birth, social security numbers (except the last four digits), and credit and financial account numbers shall be redacted from documents filed in reliance on this exception by the filer. All filings of discovery documents shall comply with Florida rrule of Judicial Administration The court shall have authority to impose sanctions for violation of this rule. 11

12 b. Revise rule as follows: Rule Depositions Upon Oral Examination (3) A copy of a deposition may be filed only under the following circumstances: (A) It may be filed in compliance with Florida rrules of Judicial Administration and rule 1.280(f) by a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. Prompt notice of the filing of the deposition shall be given to all parties unless notice is waived. A party filing the deposition shall furnish a copy of the deposition or the part being filed to other parties unless the party already has a copy. (B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party, and the filing party shall comply with rules and 1.280(f). c. Revise rule as follows: Rule Interrogatories To Parties (e) Service and Filing. Interrogatories shall be arranged so that a blank space is provided after each separately numbered interrogatory. The space shall be reasonably sufficient to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories. The interrogatories shall be served on the party to whom the interrogatories are directed and copies shall be served on all other parties. A certificate of service of the interrogatories shall be filed, giving the date of service and the name of the party to whom they were directed. The answers to the interrogatories shall be served upon the party originally propounding the interrogatories and a copy shall be served on all other parties by the answering party. The original or any copy of the answers to interrogatories may be filed in compliance with Florida rrules of Judicial Administration and rule 1.280(f) by any party when the court should consider the answers to interrogatories in determining 12

13 any matter pending before the court. The court may order a copy of the answers to interrogatories filed at any time when the court determines that examination of the answers to interrogatories is necessary to determine any matter pending before the court. d. Revise rule as follows: Rule Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes (d) Filing of Documents. Unless required by the court, a party shall not file any of the documents or things produced with the response. Documents or things may be filed in compliance with Florida rrules of Judicial Administration and rule 1.280(f) when they should be considered by the court in determining a matter pending before the court. e. Add the following Committee Notes A. The CPRC proposes that the following Committee Note be added to Rules 1.310, 1.340, and 1.350: 2010 Amendment. A reference to rules and 1.280(f) is added to require persons filing discovery materials with the court to make sure that good cause exists prior to filing discovery materials and that certain specific personal information is redacted. B. The CPRC proposes that the following Committee Note should be added to Rule 1.280: 2010 Amendment. Subdivision (f) is added to ensure that information obtained during discovery is not filed with the court unless there is good cause for the documents to be filed, and that information obtained during discovery that includes certain private information shall not be filed with the court unless the private information is redacted as required by rule except in compliance with Florida Rule of Judicial Administration Code and Rules of Evidence Committee The Code and Rules of Evidence Committee (CREC) Chair, Robert Eschenfelder, participated in Rules of Judicial Administration subcommittee 13

14 discussions while Rule was being developed. The main comments provided by the CREC were: (1) since the Florida Public Records Act does not apply to the judicial branch, it should not be mentioned as justification or support for the rule, either in the rule text or in any accompanying comments; and (2) since, unlike bank or credit card numbers, customer account numbers are randomly-assigned characters used only to identify the customer within the company, and cannot be used to defraud or steal from the customer as one could with a bank or credit card number, and since businesses often need to cite account numbers in collection and bankruptcy actions, the rule should not prohibit the filing of customer account numbers. Criminal Procedure Rules Committee The Criminal Procedure Rules Committee (CPRC) participated extensively in the work of the Rules of Judicial Administration subcommittee that submitted a final proposed Rule to the CPRC as well as to the other rules committees. The CPRC s Fast Track subcommittee unanimously recommended approval of the Rules of Judicial Administration Committee s final proposal that includes an exception, in subsection (b)(7), for traffic and criminal proceedings. At The Florida Bar s Mid-Year meeting on September 24, 2010, the full CPRC voted 24-0 to approve the subcommittee s recommendation regarding the final RJA version of Rule containing the referenced exception. The basis for CPRC s position in recommending and approving a full exemption for traffic and criminal proceedings to the requirements of proposed Rule is that the use of personal information is a foundation in the prosecution and defense of criminal and traffic proceedings. Much of the information listed in subsection (a) of the proposed rule requiring abbreviated or truncated versions is standard and customarily contained in arrest affidavits, search warrants, and related affidavits, charging documents (including Uniform Traffic Citations in traffic proceedings), police reports, and other discovery documents. The requirement to abbreviate or truncate such information would overwhelm prosecutors and their offices due to the volume of the documents these offices handle. The use of abbreviated or truncated filings in these documents would prevent defense attorneys from effectively investigating their cases. The CPRC sought the full exemption to Rule 2.425, rather than requesting an exemption based on a lengthy list of specific and numerous examples of documents 14

15 using personal information, as a logical way to achieve certainty and manageability in the prosecution and defense of criminal proceedings. Family Law Rules Committee At its June 25, 2010, meeting, the Family Law Rules Committee considered Rule as proposed by the Access Subcommittee. The committee voted to recommend changes in the proposed rule as follows: 1. To add statute to the exceptions in subdivision (a). 2. To add exceptions in subdivision (b) as follows: a. That the requirements regarding birth date of a minor child will not apply to the filing of any pleading, motion, or paper in which the inclusion of the birth date is necessary for the court to establish and maintain subject matter jurisdiction. b. That the requirements regarding the name of a minor child will not apply to any order relating to parental responsibility, timesharing, or child support. c. That the requirements regarding the birth date and address of a party will not apply to writs of attachment or notices to payors. d. That the requirements regarding a person s address will not apply when the address is necessary to establish that the person has been served with a pleading, motion, paper, subpoena, or order. These recommendations were considered by the Rules of Judicial Administration subcommittee and largely incorporated into proposed Rule The attached amendments to the Family Law Rules and Forms are essentially the proposals previously submitted to the Court in this case to minimize personal information being filed with the court. They were contained in the Court s compilation of pending proposals found at supremecourt.org and referred to in the Court s April 1, 2010, order. References have been changed to Rule Amendments to the 15

16 Court s compilation of pending proposals are shown in the attached rules and forms in double underline. Style changes have been made to the family law forms for ADA compliance. A correction has also been made to an error in West s Florida Rules of Court 2010 in the Committee Note to Rule See In re: Amendments to the Florida Family Law Rules of Procedure, 783 So. 2d 937, 940 (Fla. 2000). A correction has also been made to an error in West s Florida Rules of Court 2010 Revised Edition in Form (b) and in the opinion last amending the form, In re Amendments to the Florida Family Law Rules, 19 So. 3d 950 (Fla. 2009). The portion of the form following the certificate of service was omitted and should not have been. The removal of this part was not requested in the Committee s report to the Court and it is a standard part of the family law forms. See, e.g., Form (c). It was included in the previous amendment to the form in In re Amendments to the Florida Family Law Rules, 995 So. 2d 407 (Fla. 2008). Juvenile Court Rules Committee In its February 14, 2007, response to the Court on the recommendations of the Committee on Privacy and Court Records, the Juvenile Court Rules Committee stated that both delinquency and dependency cases are confidential and not subject to public disclosure or publication on the Internet. See , , , Fla. Stat. (2006). The Juvenile Court Rules Committee reaffirms this statement. However, certain information proposed to be precluded from court files by Rule is necessary for delinquency and dependency proceedings, in particular the full name and birth date of the child. See, e.g., Fla. R. Juv. P (b), 8.035(a)(2), 8.204, 8.305(a)(1), 8.310(a)(2), 8.500(b)(2), (3)(b), (2), (5), Fla. Stat. (2010). The Juvenile Court Rules Committee, therefore, recommended by a vote of that subdivision (a) of the proposed rule include an exception for information required by statute. This has been included in the proposed rule. Probate Rules Committee 16

17 On May 26, 2010, the Probate Rules Committee voted to confirm its amendments to the probate rules as set forth in the committee s previous filings with the Court and as found in the compilation of pending proposals at The Probate Rules Committee recognized the need, in certain rules, to continue the requirement regarding the full name of a minor child, the date of birth of a minor child, and account numbers. For example, pleadings and orders affecting an interest in real property should include the minor s full name. Rule does appear to address the concern that an account number is needed in an Order of Summary Administration or other order directing the distribution of a particular account owned by the decedent. The committee brings to the Court s attention that other amendments to Rules 5.200, 5.210, and were made by the Court in case number SC and will become effective January 1, In addition, amendments to Rules and will be submitted to the Court in conjunction with the e-service petition. A further amendment to Rule will also be filed with the committee s 2010 legislative amendments. Small Claims Rules Committee The Small Claims Rules Committee reviewed proposed Rule and formed a subcommittee to identify any Small Claims Rules that may be affected by the proposed rule. The subcommittee identified six rules and one form that may need to be amended to conform with Rule The full committee voted to postpone any amendments to the Small Claims rules or forms until Rule is enacted, given the proposed amendments. Traffic Court Rules Committee The Traffic Court Rules Committee concurs with the Criminal Procedure Rules Committee s response. As required by Rule 2.140, the proposed amendments have been reviewed and approved by the Executive Committee of The Florida Bar Board of Governors. The committees and Executive Committee s votes are shown in Appendix A. The proposed amendments to the rules and forms are 17

18 found in Appendix B (full-page format) and Appendix C (two-column format). The committees respectfully request that the Court amend the rules of procedure as outlined in this report. Respectfully submitted 18

19 John F. Harkness, Jr. Executive Director The Florida Bar 651 E. Jefferson St. Tallahassee, FL / Florida Bar No.: Katherine E. Giddings, Chair Rules of Judicial Administration Committee 106 E. College Ave., Ste Tallahassee, FL / Florida Bar No.: John Granville Crabtree, Chair Appellate Court Rules Committee 240 Crandon Blvd., Ste. 234 Key Biscayne, FL / Florida Bar No.: Donald E. Christopher, Chair Civil Procedure Rules Committee P. O. Box 1549 Orlando, FL / Florida Bar No.: Robert M. Eschenfelder, Chair Code and Rules of Evidence Committee 1112 Manatee Ave. W., Ste. 969 Bradenton, FL / Florida Bar No.: 8435 Robert T. Strain, Chair Criminal Procedure Rules Committee 3801 Corporex Park Dr., Ste. 210 Tampa, FL / Florida Bar No.: Steven P. Combs, Chair Family Law Rules Committee 3217 Atlantic Blvd. Jacksonville, FL / Florida Bar No.: William W. Booth, Chair Juvenile Court Rules Committee 423 Fern St., Ste. 200 West Palm Beach, FL / Florida Bar No.:

20 Jeffrey S. Goethe, Chair Probate Rules Committee 3119 Manatee Ave. W. Bradenton, FL / Florida Bar No.: Michele A. Cavallaro, Chair Small Claims Rules Committee 6600 N. Andrews Ave., Ste. 300 Ft. Lauderdale, FL / Florida Bar No.: John J. Anastasio, Chair Traffic Court Rules Committee 3601 S.E. Ocean Blvd., Ste. 203 Stuart, FL / Florida Bar No.:

21 CERTIFICATE OF SERVICE on I certify that a copy of this report was furnished by United States mail to Carol Jean LoCicero 400 N. Ashley Dr., Suite 1100 Tampa, FL Deanna Shullman 400 N. Ashley Dr., Suite 1100 Tampa, FL Hon. Judith Kreeger, Chair Subcommittee on Access to Court Records c/o Steve Henley, OSCA Supreme Court Building 500 S. Duval St. Tallahassee, FL Russell Robert Winer th Street, N. St. Petersburg, FL

22 APPENDIX A APPX. A-1

23 TABLE OF AMENDED RULES AND FORMS GENERAL PROVISIONS GOVERNING DISCOVERY [AMENDED] Committee vote: 29-6 Board of Governors Executive Committee vote: DEPOSITIONS UPON ORAL EXAMINATIONS [AMENDED] Committee vote: 29-6 Board of Governors Executive Committee vote: INTERROGATORIES TO PARTIES [AMENDED] Committee vote: 29-6 Board of Governors Executive Committee vote: PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES [AMENDED] Committee vote: 29-6 Board of Governors Executive Committee vote: MINIMIZATION OF THE FILING OF SENSITIVE INFORMATION [NEW RULE] Committee vote: Board of Governors Executive Committee vote: MAINTAINING PRIVACY OF PERSONAL DATA [NEW RULE] Committee vote: 48-0 Board of Governors Executive Committee vote: DOCUMENTS SUPPORTING ACTION OR DEFENSE [AMENDED] Committee vote: Board of Governors Executive Committee vote: GENERAL PROVISIONS GOVERNING DISCOVERY Committee vote: [AMENDED] APPX. A-2

24 Board of Governors Executive Committee vote: MANDATORY DISCLOSURE [AMENDED] Committee vote: Board of Governors Executive Committee vote: INTERROGATORIES TO PARTIES [AMENDED] Committee vote: Board of Governors Executive Committee vote: EVALUATION OF MINOR CHILD [AMENDED] Committee vote: Board of Governors Executive Committee vote: REQUESTS FOR ADMISSIONS [AMENDED] Committee vote: Board of Governors Executive Committee vote: SUBPOENA [AMENDED] Committee vote: Board of Governors Executive Committee vote: SETTING ACTION FOR TRIAL [AMENDED] Committee vote: Board of Governors Executive Committee vote: RELIEF FROM JUDGMENT, DECREES, OR ORDERS [AMENDED] Committee vote: Board of Governors Executive Committee vote: DISCOVERY IN AID OF EXECUTION [AMENDED] Committee vote: Board of Governors Executive Committee vote: RECEIVERS [AMENDED] Committee vote: Board of Governors Executive Committee vote: 12-0 APPX. A-3

25 12.930(b) (c) (d) STANDARD FAMILY LAW INTERROGATORIES FOR ORIGINAL OR ENFORCEMENT PROCEEDINGS [AMENDED] Committee vote: Board of Governors Executive Committee vote: 12-0 STANDARD FAMILY LAW INTERROGATORIES FOR MODIFICATION PROCEEDINGS [AMENDED] Committee vote: Board of Governors Executive Committee vote: 12-0 NOTICE OF SERVICE OF ANSWERS TO STANDARD FAMILY LAW INTERROGATORIES [NEW FORM] Committee vote: Board of Governors Executive Committee vote: 12-0 APPX. A-4

26 APPENDIX B APPX. B-1

27 RULE GENERAL PROVISIONS GOVERNING DISCOVERY (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as provided in rules 1.200, 1.340, and (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (2) Indemnity Agreements. A party may obtain discovery of the existence and contents of any agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure. (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party s representative, including that party s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial APPX. B-2

28 equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred as a result of making the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule without motion or order of court. (iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial: 1. The scope of employment in the pending case and the compensation for such service. APPX. B-3

29 2. The expert s general litigation experience, including the percentage of work performed for plaintiffs and defendants. 3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial. 4. An approximation of the portion of the expert s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services. An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(c) of this rule concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(a) and (b)(4)(b) of this rule; and concerning discovery from an expert obtained under subdivision (b)(4)(a) of this rule the court may require, and concerning discovery obtained under subdivision (b)(4)(b) of this rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. APPX. B-4

30 (D) As used in these rules an expert shall be an expert witness as defined in rule 1.390(a). (5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Except as provided in subdivision (b)(4) or unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is APPX. B-5

31 conducting discovery, whether by deposition or otherwise, shall not delay any other party s discovery. (e) Supplementing of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired. (f) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. Compliance with specific mandatory filing requirements of any other rule of procedure shall constitute good cause except that If information obtained during discovery is filed with the Court, dates of birth, social security numbers (except the last four digits), and credit and financial account numbers shall be redacted from documents filed in reliance on this exception by the filer. All filings of discovery documents shall comply with Florida rrule of Judicial Administration The court shall have authority to impose sanctions for violation of this rule. Committee Notes [No change] 1972 Amendment. The rule is derived from Federal Rule of Civil Procedure 26 as amended in Subdivisions (a), (b)(2), and (b)(3) are new. Subdivision (c) contains material from former rule 1.310(b). Subdivisions (d) and (e) are new, but the latter is similar to former rule 1.340(d). Significant changes are made in discovery from experts. The general rearrangement of the discovery rule is more logical and is the result of 35 years of experience under the federal rules Amendment. Subdivision (b)(2) has been added to enable discovery of the existence and contents of indemnity agreements and is the result of the enactment of sections and , Florida Statutes, proscribing the joinder of insurers but providing for disclosure. This rule is derived from Federal Rule of Civil Procedure 26(b)(2). Subdivisions (b)(2) and (b)(3) have been redesignated as (b)(3) and (b)(4) respectively. APPX. B-6