Civil Procedure Rules Committee January 2017 Agenda

123 Pages·2017·7.82 MB·English

THE CIVIL PROCEDURE RULES COMMITTEE OF THE FLORIDA BAR

Gaylord Palms Resort & Convention Center

St. George 108

Thursday, January 26, 2017

2:00 to 6:00 p.m.

I. INTRODUCTORY MATTERS
A. Approval of Minutes of Meeting of January 21, 2016
Minutes of October 20, 2016, meeting. ................................................................p. 4

Presenter: R.J. Haughey, Chair

B. Docket of Pending Proposal ............................................................................p. 22

C. Supreme Court update
Presenter: R.J. Haughey, Chair
D. Report of Liaison to Rules of Judicial Administration Committee
Presenter: Judge Rodolfo Ruiz
E. Report of Review of the Federal Rules
Presenter: Judge Rodolfo Ruiz
II. OLD BUSINESS
A. Drafting Subcommittee
1. Rule 1.535 (Remittitur and Additur) (13-CIV-9) .............................p. 28, 35

2. Rule 1.570 (Enforcement of Final Judgments) (16-CIV-8) .............p. 29, 36

3. Form 1.914(a) (Execution) ..............................................................p. 30, 38

4. Form 1.914(b) (Notice to Appear) ...................................................p. 31, 39

5. Form 1.914(c) (Affidavit of Claimant in Response to Notice

to Appear) ........................................................................................p. 33, 40

Presenter: Jane Kreusler-Walsh

B. E-discovery and Federal, Rule 1.380 (14-CIV-26)
1. Subcommittee Report .............................................................................p. 42

2. Exhibit A.................................................................................................p. 47

Presenter: Rachael Loukonen

C. Full Form Review (15-CIV-16)
1. Subcommittee Report .............................................................................p. 50

Presenter: Judge Daryl Trawick

D. Rule 1.150 – Sham Pleadings (16-CIV-2)
Referral Letter. ...................................................................................................p. 56

Presenter: Christopher Benjamin

E. Rule 1.442 / Proposal for Settlement Forms (16-CIV-9)
1. Subcommittee Report .............................................................................p. 57
2. Exhibits ..................................................................................................p. 62
Presenter: Alan Landerman
F. Rule 1.540(b) Revision (16-CIV-11)
De la Oso v. WellsFargo ....................................................................................p. 73
Presenter: Judge Rodolfo Ruiz
G. Discovery Deadline Subcommittee (16-CIV-12)
E-mail request from Deborah Baker................................................................p. 101
Presenter: Alan Landerman
H. Rule 1.310(b)(4), Recordable Technology Subcommittee (16-CIV-13)
1. Referral Letter. .....................................................................................p. 106

2. Rule 1.310. ...........................................................................................p. 107
Presenter: Martin Alexander
I. Internal Operating Procedures Subcommittee (16-CIV-15)
Presenter: Kevin Cook
J. Joint Workgroup on Video Deposition (16-CIV-16)
Presenter: Judge Daryl Trawick/Jason Stearns
K. Amicus Curiae Subcommittee (16-CIV-17)
Referral Letter. .................................................................................................p. 115
Presenter: Judge Rodolfo Ruiz
L. Safe Harbor Procedure Subcommittee (16-CIV-18)
Referral Letter. .................................................................................................p. 118
Presenter: Judge Daryl Trawick
M. Taxation of Costs Subcommittee (16-CIV-20)
Presenter: Keith Park
III. NEW BUSINESS
A. Rule 1.071, Constitutional Challenge (16-CIV-21)
Referral Letter. .................................................................................................p. 119

B. Rule 1.070, Proof of Service (16-CIV-22)
Referral Letter. .................................................................................................p. 122

IV. ANNOUNCEMENTS**
V. NOTIFICATION OF NEXT MEETINGS
Annual Meeting – June 21-24, 2017

Boca Raton Resort & Club, Boca Raton

Fall Meeting – October 11-14, 2017
January 2017 Agenda Civil Procedure Rules Committee Page 2 of 123
Tampa Airport Marriott, Tampa
January 2017 Agenda Civil Procedure Rules Committee Page 3 of 123
THE CIVIL PROCEDURE RULES COMMITTEE OF THE FLORIDA BAR

MINUTES OF THE OCTOBER 20, 2016 MEETING

TAMPA, FLORIDA

Taken by Michael Orr and Rachael Loukonen
___________________________________________________________________________
I. INTRODUCTORY MATTERS.

RJ Haughey introduced Michelle Suskauer and gave her the opportunity to speak. She
had an opportunity to visit with everyone at the Annual Meeting. She is a criminal
defense attorney in Palm Beach, practicing for 25 years. Of the 103,000 lawyers in
Florida, most do not know who the president of the Florida Bar is, because there has not
been contested race for 5 years. She has served on the Board of Governors and will work
with the section, committees, judiciary, and the legislature. Consider voting for Michelle
Suskauer.

Before we go around the room and start the introductions, I want to introduce our Florida
Bar Liaison, Krys Godwin, and personally thank her for stepping in last week and getting
everything in order.

Introductions were made by all members.

RJ Haughey then introduced Lance Scriven and gave him the opportunity to speak. He
has served on the Board of Governors and is in the contested race for Florida Bar
President. Originally from Jacksonville. Attended Duke University. Met wife, Mary
Scriven. Attended Duke Law School. Clerked for Joe Hatchett in Atlanta. Trennom law
firm in Tampa for 12 years. On his own for 11. Returned in 2013. Been involved since
1991. In 2005, he became first black President in Hillsborough County. Has served on
the Florida Bar Board of Governors since 2009. It’s not about credentials, but about due
diligence. He has a long record of service and integrity. About 6 months ago he was
driving back from Orlando with wife and son after a Magic game. His son thought he
was asleep. His son asked, "Mom, why does dad want to be President of the FL Bar?"
His mom replied, "He wants to give back." Son says “that’s just stupid.” He is serious
about this and wants to help. The biggest issue facing the profession is the CRC
(Constitutional Revision Commission). Every 20 years under Florida's Constitution,
there is a commission convened of 37 appointees, including among them the governor,
speaker, attorney general, and members of the Florida Supreme Court. Some of the
issues that could come up in the process concern the regulation of lawyers. For example,
rule making authority should remain exclusively under the Florida Supreme Court rather
than going to the Legislature. There has been chatter about this, and about removing the
Judicial Qualifications Commission and putting term limits on the judiciary. The Board
of Governors took a position opposing judicial term limits. The CRC does not have
limitations of Citizens Initiative. Whoever is elected to serve as the Florida Bar President
will have 5 months to engage in messaging with public concerning the CRC. He is
sometimes criticized for being so serious and thoughtful, but this is not a bad thing. He
asked that we talk to people that know him. He and Michelle have served together since
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2010. The Bar has an election committee. Five Bar presidents that they have both served
under have all endorsed him. Everyone has reached the same judgment. Most lawyers
don’t care about a competition. Only 26.7% of lawyers voted in the last contested race.
This is too important for people not to vote. March 1 is when the ballots come out.

Krys has sent around a new Florida Supreme Court opinion, Kuhadja v. Bordendarry.
Offer of settlement is not invalid for failing to state that it includes attorney’s fees if
attorney’s fees are not sought in the pleadings. There was a conflict between the 1st and
4th DCA, and the Florida Supreme Court determined the offer should be enforced. Check
out this opinion.

A. Approval of Revised Minutes of Meeting of June 16, 2016
Presenter: R.J. Haughey II, Chair

October 11, 2016, Revised Minutes of June 16, 2016, meeting

Motion to approve by Miguel Chammaro. Keith Park – page 9, middle of the
page, someone should be commended for his hard work. It should be under
paragraph C of page 10, plug into the very end of page 12, section C. Remittitur
and Additur.

MOTION AND VOTE

Chamarro: Motion to amend the minutes per Park's comments.

Garcia: Second.

Vote: Unanimous. Motion carries.

MOTION AND VOTE

Ruiz: Motion to approve the minutes as amended.

Kreusler-Walsh: Second

Vote: Unanimous. Motion to carries.

RJ Haughey then introduces Williams "Bill" Schifino, President of the Florida
Bar. Schifino is excited to be here among fine people who are passionate about
what they do. It has been a busy first 3 months as Bar President. He has been to
10 cities 25 different times. Most of his time is spent dealing with issues in
Tallahassee, including issues that impact Judicial Branch such as term limits and
the CRC (Constitutional Revision Commission). When he spoke at the Voluntary
Bar Conference, only 10% of the attendees knew about the CRC. Florida is the
only state in US that has this requirement. The CRC is made up of 37 individuals.
By majority or super majority, the CRC can place amendments on the ballot that
they deem appropriate. NOBODY can review any amendment. They can bundle
proposed amendments. These 37 people are divided up as follows: Governor has
15 appointees, Speaker has 9, Senate President has 9, 3 for the Judicial Branch,
plus the Attorney General. The Florida Bar anticipates that lawyer regulation and
term limits will be at issue. Joe Negron is accepting applications for the CRC,
and the Governor is accepting applications too. There is nothing from Speaker of
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the House as of yet. There is a Florida Bar Committee on this issue presently. He
is working closely with FJA, trial lawyers and business lawyers section. He
enjoys working with lawyers.

Michael Higer was then introduced and promised to be brief. Mr. Higer
mentioned that Don Hayden and Colleen Maranges are also from Berger
Singerman. Thank you for your service. You are the heart and soul of what we
do.

B. Report of Liaison to Judicial Administration Rules Committee
Presenter: Judge Rodolfo Ruiz

Ruiz: The Rules of Judicial Administration Committee meets tomorrow at 1 p.m.
Still dealing with after-effects of new rules. RJA needed more oversight of rules
from other committees. RJA reviewed everyone’s rule changes to see if there was
any conflict. Exciting projects – proposed rewrites on 2.330 (disqualification)
and electronic filings (2.525, 2.511, 2.415). Planning to take out technical terms
and streamline them. No other impacts on Civil Rules Committee at this time.

C. Supreme Court update
Form 1.983 Prospective Juror Questionnaire (Case SC16-996)
Presenter: Judge Jacqueline Hogan Scola
1. Subcommittee report
2. Petition to Supreme Court
3. Comment from Indian River County Clerk Court Smith
4. Proposed Amended Form 1.983
5. Committee Response to Comment
6. Appendix A to Committee response

Scola: Already approved modifications to 1.983. File Juror questionnaires to
redact private information. Updated rule on addition of all parents who have
custody of small children instead of just mothers. Chett Smith is the Clerk in
Indian River County, made 3 suggestions. Suggests the redaction should be split
up on two different lines. The Clerks are not managing this—parties and court
were in charge of redaction. They did not act on the 1st suggestion. The 2nd
suggestion – make it conform with the statute that has broader law enforcement.
They accepted this suggestion. As to the 3rd suggestion – Take out name of
Sheriff on Summons. Statute does not mention Sheriff. Took out the word
“registered mail.” Struck out “or in person.” Subcommittee approved this
suggestion.

Scola: Should we need a Motion? Do we need a form? There is nothing for us to
do. This is a revised form. The first modifications were adopted by the Board of
Governors before the Florida Supreme Court adopted, they posted for comments.
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Chett Smith made 3 recommendations. Modified version of form. Voted on
electronically. Response to comments, it has been adopted. Merely here for your
information. Never discussed at a full committee meeting. We handled this by a
two-week deadline per the Florida Supreme Court.

II. OLD BUSINESS

A. Drafting Subcommittee
Presenter: Jane Kreusler-Walsh
1. Subcommittee Report
Kreusler-Walsh: The report is at page 34. Open to that and follow along.

2. Rule 1.090, Time
Kreusler-Walsh: Change to subsection “B” on enlargement. Summarized in the
report. This rule is clean, no changes.

3. Rule 1.380, Failure to Make Discovery; Sanctions
Kreusler-Walsh: Return to subcommittee per the comments in the report.
Revisions to subsection “(e)” – accepted the rule as presented except for the word
“measures” It was better to replace the word measures with the word “sanctions.”
Replaced “among” with “identified in” in subsection 2. They also replaced in the
committee note with sanctions or sanction as appropriate. Suggested that the
subcommittee look at the word “information” in subsection 2. They felt taking
out the rest of the words may be a substantive change and they were not
comfortable doing it. The question is whether or not the words “used in the
litigation” have some sort of special meeting.

Loukonen: Rachael Loukonen is the chair of the subcommittee. What is being
proposed makes sense to her at first blush. Does it need to go back to
subcommittee?

Ruiz: Judge Ruiz is ok with it not going back to the subcommittee. Litigation
will spawn out of this language.

Bronson: Ardith Bronson commented that the proposed changes could be a
substantive change that broadens the rule. Bronson thinks it is substantive.

Haughey: Chair R.J. Haughey agrees and thinks it should go back to the
subcommittee. Before we make a change, let’s make sure it is not substantive.

Loukonen: Subcommittee Chair Loukonen says the language tracked the federal
changes; look at Rule (e)(2). It has the same language. They are using the same
language in the comment. The committee approved (e)(2), so question is, does
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this appear to be a edit to (e)(2). They are not talking about the committee note.
As to the header, “Sanctions” comports with the subtitle; it does not say measures.
Depriving someone’s use in the litigation has significance. Rachael Loukonen
loves this committee and does not mind it coming back. This needs to be in line
with modern law on this topic and is worth a look.

Trawick: “The issue is “information used in the litigation” – look at the last
paragraph of the report to from the subcommittee. Judge Trawick wants to know
if we are only striking the words “used in the litigation.”

Stearns: Jason Stearns is concerned about changing “measures” to “sanctions” –
The title should be changed to use measures and we should not change to
sanctions. He is concerned about whether the Court awarding fees would
necessarily be a “sanction” as opposed to a “measure” to cure an issue in
discovery.

4. Form 1.984, Juror Voir Dire Questionnaire

Kreusler-Walsh: Clean, no changes suggested.

5. Form 1.952, Proposal for Settlement
Kreusler-Walsh: Return to subcommittee per the comments in the report. Forms
were the same except for some tweaks that were made. Jane Kreusler-Walsh
wants some directions from the Florida Supreme Court. Send back to
subcommittee to analyze what, if any, effect this new opinion from the Florida
Supreme Court has on any of these forms.

Landerman: I have not read the opinion. 1.442(7)(B) – he believes the holding is
consistent with the Rule and does not appear to be a problem with the Rule. This
is a 3 year cycle amendment and we are not in a rush. We will take this up with
the subcommittee and consider the comments.

B. Application of 5-day rule to and a 5:00 p.m. deadline of email service (joint
packet with RJA)
Presenter: Keith Park
1. Board of Governors memo
2. Joint vote table and proposed rules

Park: This all goes back to the original intent of the Rules of Judicial
Administration (RJA) to eventually amend 2.514 to eliminate the 5-day response
time. When the rule changes were made, it was understood that the 5-day rule
would eventually be removed from the rule. The RJA has now determined that it
is time to remove the "5-day fiction." We looked over the rules to determine if
other rules should be changed due to the removal of the 5-day rule. After looking
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over the rules, we came to the conclusion that no amendments were needed. We
concluded that if extra time is needed, you can always request extra time. The
summary judgment rule was the one issue for us due to the respondent's 2-day
deadline.

When we took the revised rule to the Board of Governors, the Board of Governors
did not like that the appellate rules were going to differ since they were not
removing the 5-day rule. The Board of Governors were concerned about the
gamesmanship that may occur, especially when something is filed at close of
business on a Friday afternoon. So, we put together an ad hoc committee that
included Ardith Bronson and R.J. Haughey.

So what problems do we have? The First DCA has a juvenile rule that does not
permit any extensions. We also did not know that some governmental entities do
not directly receive their emails, because their emails travel through a central
email system. There were also concerns expressed about not having the 5:00 p.m.
deadline.

I put forth a proposal asking that they concentrate on what happens if an email is
received after 5:00 p.m. or on a holiday, and then deal with the issue that way. It
is important that all of the rules committees come to an agreed conclusion so that
there is consistency between the appellate rules, civil rules, and the other rules.

Cook: We have changed the rule to allow e-service. Why do we want to keep
tinkering with it? Why not just leave it the way it is? What is the harm in
keeping the 5 days?

Park: I agree it's not broke. The middle position is that we all agree on the federal
3-day rule, but that rule is going away soon. Where I live, the 5-day time period
was always a fiction, because if something was mailed, I would get it the next
day. Leaving the 5-day time period was a compromise and now it's time to move
forward with the original intended plan to remove the 5-day rule. If we lose the
5-day period of time and then decide that we need to change it, then we can
change it at that point.

Haughey: Another factor that led to the removal of the 5-day is that it is fiction if
you can shorten the time by hand delivery. It is an oddity in the rules. So, RJA
felt it was an anomaly that should be fixed.

Park: Fax was part of that compromise on the 5-day rule. We can serve by email,
but we have the fax to fall back on. People coming into the practice of law in
Florida look at the rule and think it's just really weird.

Haughey: The one rule that has caused the most angst is the summary judgment
rules. It's 20 days and then 2 days for counter evidence. Should we consider if
those time frames make sense?
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Park: We were not trying to make substantive changes. We were just changing it
so that the email is the same as hand delivery or facsimile. Not trying to modify
the rule to do anything else than it already did.

Haughey: This rule is being voted on by RJA tomorrow. Did you send it before
or after 5:00 p.m.? (laughter)

Park: I think it was after 5:00 p.m. I believe it is being voted on tomorrow.

Ruiz: It is on the agenda, but we are not sure if we will get to that proposed
change tomorrow.

Park: I suspect that the RJA will not do anything in a final form until they get
feedback from some of the other rules committees.

C. Rule 1.535 Remittitur and Additur
Presenter: Keith Park
1. Subcommittee Report
2. Mora decision
3. Revised Rule 1.535, Remittitur and Additur

Park: This goes back to when Bard Rockenbach was trying to get this passed.
Drafting had some comments and sent it back to the subcommittee. As part of the
materials, I do not have the previous rule that was proposed. The current form is
on page 108.

What happened with this? I think we were trying to simplify what seemed to be
overly complicated. From the perspective of the subcommittee, the project is not
complete. The primary goal was to do what we could to keep from having
multiple appeals on the same subject matter. The possibility of 3 or 4 appeals on
same subject matter was something that we wanted to deal with if possible. Bard
Rockenbach was trying to handle that by requiring the motions to be made
simultaneously, but he then realized that it was going to be a difficult process.

So, this led to a new subcommittee to discuss multiple appeals on the same
subject matter. We likely need an ad hoc committee with the appellate rules to
really get this rule right.

The Moro case is included to show what can happen and why the rule may be
necessary.

Haughey: Drafting identified issues and it went back to subcommittee. The
subcommittee believes it has addressed the issues, and that is the proposed rule
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