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Thursday, August 18, 2022

As Published in the Daily Business Review: Amendments to Florida's Rules Permanently Authorize Remote Court Proceedings—What Attorneys Need to Know

By: Esther E. Galicia  |  August 17, 2022
As Published in the Daily Business Review

Remote court proceedings are here to stay! Based on the success of remotely-conducted proceedings since the inception of the COVID-19 pandemic, the Florida Supreme Court has amended Florida’s various procedural rules, effective Oct. 1, 2022, to provide “permanent and broader authorization for the remote conduct of certain court proceedings.” In re: Amendments to the Florida Rules of Civil Procedure, No. SC21-990, 2022 WL 2721129, at *1 (Fla. July 14, 2022). {Baker Act hearings are excluded from the general authorization.}

At the center of the Supreme Court’s amendments is the general authorization for court proceedings through “communication technology” set forth in substantially rewritten Florida Rule of General Practice and Judicial Administration 2.530 (renamed “Communication Technology”).  “Communication technology” is defined as “audio communication technology or audio-video communication technology.” Fla. R. Gen. Prac. & Jud. Admin. 2.530(a)(3). The term “audio communication technology” refers to “electronic devices, systems, applications, or platforms that permit all participants to hear and speak to all other participants in real time.” Fla. R. Gen. Prac. & Jud. Admin. 2.530(a)(1). “Audio-video communication technology” encompasses “electronic devices, systems, applications, or platforms that permit all participants to hear, see, and speak to all other participants in real time.” Fla. R. Gen. Prac. & Jud. Admin. 2.530(a)(2). These three terms and their definitions are incorporated in the Supreme Court’s various amendments.

Below are bullet point summaries of the “Communication Technology” and related amendments that pertain to the Florida Rules of Civil Procedure, Florida Rules of General Practice and Judicial Administration, and Florida Rules of Appellate Procedure. {The Supreme Court also amended the Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, and Florida Small Claims Rules.}

I. Rules of Civil Procedure

  • Rule 1.310(b)(4):  Requires notice of taking deposition to specifically state in title the intent to audio-visually record the deposition.  The method of audiovisual recording and the recording equipment must also be identified.
  • Rule 1.310(b)(7):  Permits depositions to be taken by communication technology if stipulated by the parties, if ordered by the court on its own motion, or on motion of a party.  Requires that notice of deposition state in the title that it will be taken using communication technology.  The notice must also specify the form of technology to be used and provide access instructions.
  • Rule 1.310(c):  Deponents must be put under oath as provided in Rule 2.530(b)(2)(B).  Party that will use an audio or audiovisual recording of testimony at a hearing or trial must have the testimony transcribed and must file a copy of the transcript with the court.
  • Rule 1.410(e):  A subpoena for taking deposition must state that the deposition will be audio-visually recorded or taken using communication technology.  The subpoena must also identify the method of recording or specific form of communication technology to be used, as well as the name and address of the equipment operator (if applicable).  Additionally, the subpoena should provide instructions to access the communication technology.
  • Rule 1.430(d):  Authorizes prospective jurors to participate in voir dire or empaneled jurors to participate in the jury trial through audio-video communication technology, if stipulated by the parties in writing and authorized by the court.  Written stipulations and written motions requesting authorization must be filed within 60 days after service of a demand for jury trial or within any court-ordered time period.
  • Rule 1.440(b):  A notice for trial must indicate if the court has authorized the participation of prospective jurors or empaneled jurors through audio-video communication technology.
  • Rule 1.700(a):  Authorizes an order of referral or written stipulation for mediation or arbitration to provide that the proceeding will be conducted through the use of communication technology.  If the order of referral is silent, the mediation or arbitration must be conducted in person, unless the parties stipulate or the court thereafter orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation.
  • Rule 1.730(c):  The enforceability of an agreement reached during mediation may not be challenged on the ground that the parties participated through the use of communication technology if that use was authorized under Rule 1.700(a).
  • Rule 1.830(a)(2):  The hearing procedures for voluntary binding arbitration may include the use of communication technology. 

II.  Rules of General Practice and Judicial Administration

  • Rule 2.451(c):  Subject to the presiding judge’s approval, prospective jurors may participate in voir dire and empaneled jurors may participate in a trial through audio-video communication technology as authorized by another rule of procedure. 
  • Rule 2.515(b):  A pro se litigant must provide his/her primary e-mail address and secondary e-mail addresses, if any.
  • Rule 2.516(b)(1)(D):  Clerk of court must excuse a pro se litigant from the requirements of email service if the party is in custody or upon the party’s declaration, under penalties of perjury, that he/she does not have an e-mail account or does not have regular access to the Internet.
  • Rule 2.530(a)(1-3):  Provides above-quoted definitions of various forms of “communication technology.”
  • Rule 2.530(b):  A court official may authorize the use of communication technology upon a party’s written motion or at the court official’s discretion.  Written objections by a party may be filed within 10 days or a period directed by the court official.  Objections are waived if not timely raised, unless good cause is established.
  • Rule 2.530(b)(1):  The court official must grant a motion to use communication technology for non-evidentiary proceedings scheduled for no more than 30 minutes absent good cause to deny it.
  • Rule 2.530(b)(2)(A-C):  A party’s motion for use of communication technology to present testimony must set forth good cause and specify whether each party consents to the form requested.  Oaths may be administered through audio-video communication technology by a person not physically present with the witness.  Only audio-video communication technology is authorized for the testimony of a person whose mental capacity or competency is at issue.
  • Rule 2.530(c):  Confers a judge with discretion to allow prospective jurors to participate through communication technology in a court proceeding to determine whether the prospective jurors will be disqualified, be excused, or have their jury duty postponed.  Also permits prospective jurors to participate in voir dire and empaneled jurors to participate in a trial through audio-video communication technology when authorized by another rule of procedure.

III.  Rules of Appellate Procedure

  • Rule 9.320(e)(1-4):  A party may request to participate in oral argument via the use of communication technology and must state the reason for that request.  The court has discretion to grant or deny the request.  Additionally, the court may sua sponte order the parties to participate in oral argument through the use of communication technology.  An oral argument in which communication technology is used for participation must be recorded and made publicly available through a live broadcast and by posting the recording to the court’s website as soon as practicable after the proceeding.
  • Rule 9.700(b):  Mediation on appeal may conducted in person, through the use of communication technology, or by a combination thereof.  A party’s motion for referral to mediation must indicate that the movant consulted with opposing counsel or unrepresented party, and state what is the position of opposing counsel or the unrepresented party with respect to the use of communication technology.  If the order of referral is silent, the mediation must be conducted in person, unless the parties stipulate or the court thereafter orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation.
  • Rule 9.740(c):  The enforceability of an agreement reached during mediation may not be challenged on the ground that the parties participated via communication technology if such technology was authorized under Rule 9.700(b).

Esther E. Galicia is a shareholder in Fowler White’s appellate practice group where she focuses her practice in civil appeals at all levels and provides litigation and trial support. She received her J.D., cum laude, from the University of Miami School of Law.

 

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