50 Fla. L. Weekly S9a

IN RE: AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE. Supreme Court of Florida. Case No. SC2023-0962. December 5, 2024. Original Proceeding — Florida Rules of Civil Procedure. Counsel: Cosme Caballero, Chair, Civil Procedure Rules Committee, Miami, Judson Lee Cohen, Past Chair, Civil Procedure Rules Committee, Miami Lakes, Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, and Heather Savage Telfer, Bar Liaison, The Florida Bar, Tallahassee, for Petitioner. Jigarbhai Amin, Lutz; Vishrut Amin, Lutz; Mark R. Osherow on behalf of Osherow, PLLC, Boca Raton, and Shari Elessar of Back on Track Mediation, Royal Palm Beach; Timothy D. Kenison of GOLDLAW, West Palm Beach; Deborah Rachel Ingraham, Miami; Russell Landy of Damian Valori Culmo, on behalf of the Business Law Section of The Florida Bar, Miami; Lucretia Pitts Barrett of Universal Property & Casualty Ins. Co., Fort Lauderdale; Ana Cristina Maldonado, Chair, Alternative Dispute Resolution Section of The Florida Bar, Davie, and Lawrence Kolin, Alternative Dispute Resolution Section of the Florida Bar, Orlando; Spencer H. Silverglate of Clarke Silverglate, P.A., on behalf of International Association of Defense Counsel, DRI Center for Law and Public Policy, Federation of Defense & Corporate Counsel, Association of Defense Trial Attorneys, Florida Chamber of Commerce, Associated Industries of Florida, Florida Insurance Council, American Tort Reform Association, National Federation of Independent Business Small Business Legal Center, Inc., American Property Casualty Insurance Association, National Association of Mutual Insurance Companies, Coalition for Litigation Justice, Inc., Washington Legal Foundation, Pharmaceutical Research and Manufacturers of America, and Alliance for Automotive Innovation, Miami; David M. Caldevilla of de la Parte, Gilbert, McNamara & Caldevilla, P.A., Tampa; Theodore C. Miloch, II of Wallen Kelley, Stuart; Kenneth B. Schurr of Law Offices of Kenneth B. Schurr, P.A., Coral Gables; Honorable Paul L. Huey, Thirteenth Judicial Circuit Court of Florida, Tampa; Kimberly Kanoff Berman of Marshall Dennehey, P.C., Fort Lauderdale; Thomas S. Edwards, Jr of Edwards & Ragatz, P.A., Jacksonville; W. Braxton Gillam, IV, of Milam Howard Nicandri & Gillam, P.A., Jacksonville; Maegen Peek Luka of Newsome Melton, Orlando; Neal A. Roth of Grossman Roth Yaffa Cohen, P.A., Coral Gables, William T. Cotterall of Florida Justice Association, Tallahassee, Peter Hunt of Rubenstein Law, P.A., Miami, John Mills of Bishop & Mills, PLLC, Jacksonville, Henry L. Perry of Perry & Young, Panama City, Herman J. Russomanno of Russomanno & Borello, P.A., Miami, and Laurie J. Briggs of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach; and Andy Bardos of GrayRobinson, P.A., Tallahassee, Responding with comments.CORRECTED OPINION[Prior Opinion at 49 Fla. L. Weekly S289a]

(PER CURIAM.) Earlier this year, the Court adopted amendments to Florida Rules of Civil Procedure 1.200 (Case Management; Pretrial Procedure), 1.201 (Complex Litigation), 1.280 (General Provisions Governing Discovery), 1.440 (Setting Action for Trial), and 1.460 (Motions to Continue Trial), with an effective date of January 1, 2025, at 12:01 a.m.¹ In re Amends. to Fla. Rules of Civ. Proc., 386 So. 3d 497 (Fla. 2024). The amendments created a framework for the active case management of civil cases with a focus on adhering to deadlines established early based on the complexity of the case, while providing room for customization by judicial circuit. The amendments also incorporated the proportionality language of Federal Rule of Civil Procedure 26(b)(1) into the Florida rules and required initial discovery disclosures and discovery supplementation like the federal rules.

Because the amendments adopted were substantially different than the alternatives submitted to the Court, interested persons were given time to file comments. Twenty comments were filed, and The Florida Bar’s Civil Procedure Rules Committee filed a response to the comments. The Court is grateful for the commenters’ and the Committee’s insight and assistance.

After considering the comments, the response, and oral argument, the Court leaves in place almost all the case management, proportionality, and discovery amendments that we adopted in our decision of May 23, 2024. We do, however, adopt additional amendments to make the May 2024 proportionality and discovery changes more effective as well as amendments to resolve potential inconsistencies. The effective date remains January 1, 2025.I.

The Court now further amends rules 1.200, 1.201, 1.280, 1.440, and 1.460. The Court also amends Florida Rules of Civil Procedure 1.090 (Time), 1.310 (Depositions on Oral Examination), 1.340 (Interrogatories to Parties), 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes), 1.370 (Requests for Admission), 1.380 (Failure to Make Discovery; Sanctions), and 1.410 (Subpoena). We highlight the more significant amendments here.

First, as recommended by multiple commenters, we add a Court Commentary to rule 1.280 to explain that the Court has adopted almost all the text of federal rule 26(b)(1) and that it is “to be construed and applied in accordance with the federal proportionality standard.” This Court Commentary should be sufficient to lead practitioners and judges to look to federal history and precedents when applying proportionality.

Next, to avoid discovery objections that just generally cite proportionality without any further explanation, the Court amends rules 1.340 and 1.350 to require providing the grounds for objecting “with specificity,” “including the reasons.”

In rule 1.340, we also add a Court Commentary to explain that “[a]ny use of standard interrogatories must be adjusted for proportional discovery.” And we will be referring the possible revision of the standard interrogatories to the appropriate Florida Bar committee.

In rule 1.350, we add language to provide that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” Adding this federal sentence to Florida’s rule should eliminate resources being needlessly wasted on objections where no materials are being withheld. The Court then adds the next sentence from Federal Rule of Civil Procedure 34, namely that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” This addition should help discovery progress when there is only an objection to part of a request.

We amend rule 1.380 to provide an enforcement mechanism for the initial discovery disclosure and supplemental discovery obligations that the Court added in rule 1.280. Today’s amendments to rule 1.380 also detail the sanctions available when a party fails to disclose or to supplement an earlier response.

As recommended by multiple commenters, we include a sanction for a violation of the discovery certification that the Court added in rule 1.280. This change will make the certification requirement more meaningful and hopefully more effective in eliminating noncompliant discovery.

Further, to address the lack of coordination between the timing of initial discovery disclosures and the timing of the first set of discovery requests, the Court amends rule 1.280 to state that “[a] party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied, except when authorized by stipulation or by court order.”

In addition to the above changes relating to discovery and proportionality, the Court adopts amendments to correct potential inconsistencies. The Court first adds “filing and service of motions for summary judgment” to the list of deadlines that rule 1.200(d)(2) requires to be in case management orders.

The Court next adjusts the conferral language in rules 1.201 and 1.460 to account for new Florida Rule of Civil Procedure 1.202 (Conferral Prior to Filing Motions). Language is added to rule 1.201 to clarify that, while rule 1.202 requires conferral before a motion is filed, rule 1.201(c)(4) is intended to require a conferral closer to the hearing date to ensure that the reserved hearing time is still necessary. However, the Court deletes the conferral language in rule 1.460(d) as it is duplicative of rule 1.202.

Finally, the Court exempts trial continuances and extensions of deadlines in case management orders from the general extension of time rule, rule 1.090.II.

The Florida Rules of Civil Procedure are amended as set forth in the appendix to this opinion. New language is underscored; deletions are in struck-through type.

The amendments are effective January 1, 2025, at 12:01 a.m., and apply to all cases pending at that time, except that the requirements of rule 1.280(a) (Initial Discovery Disclosures) shall not apply to any action commenced before the effective date. Case management orders already in effect on January 1, 2025, continue to govern pending actions; however, any extensions of deadlines specified in those existing case management orders are governed by amended rule 1.200 or amended rule 1.201. For actions commenced before January 1, 2025, and in which the court has not issued a case management order by that date, a case management order must be issued by April 4, 2025.

Rehearing does not affect the effective date.

It is so ordered. (MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur. LABARGA, J., concurs in part and dissents in part with an opinion.)

[Editor’s note: The Appendix is not included in this report. It may be viewed in its entirety in our Rule Revisions section of our website at www.FloridaLawWeekly.com at no charge. Subscribers may call our office at 800-351-0917 to request a copy.]

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¹We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also Fla. R. Gen. Prac. & Jud. Admin. 2.140(f).

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(LABARGA, J., concurring in part and dissenting in part.) When the majority initially amended Florida Rule of Civil Procedure 1.280(c) in May 2024, I expressed concern about doing so before receiving input from the rules committee. See In re Amends. to Fla. Rules of Civ. Proc., 386 So. 3d 497, 501 (Fla. 2024) (Labarga, J., concurring in part and dissenting in part). In particular, I suggested that a rule change as significant as incorporating the proportionality language of Federal Rule of Civil Procedure 26(b)(1) should only be done after considering such input.

Since that time, the Court has received valuable comments on the amendments that are set to take effect on January 1, 2025, and in response, the majority now adopts additional changes. However, even as further amended, while I concur with the framework proposed by the amendments and the goal of improving the resolution of civil cases in our state courts, I dissent because I cannot agree to incorporating the federal proportionality language into our state court discovery rules.

The lofty mission of the sweeping reforms mandated by today’s decision is to “[enhance our] civil case management processes in order to deliver justice in a timely, cost-efficient, and accountable manner, while maintaining due process.” Id. at 499 (majority opinion) (quoting In re Workgroup on Improved Resolution of Civil Cases, Admin. Order No. AOSC19-73 (Fla. Oct. 31, 2019)). As noted by the majority opinion, the previously adopted amendments “created a framework for the active case management of civil cases with a focus on adhering to deadlines established early based on the complexity of the case, while providing room for customization by judicial circuits given the varying levels of volume, resources, and available automation.” Id. (emphasis added).

In order to effectuate this proportional mandate, the majority has incorporated into the scope of Florida rule 1.280(c)(1) the proportionality mandate of federal rule 26(b)(1). Accordingly, rule 1.280(c)(1) now provides:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

(Emphasis added.)

Unfortunately, despite the majority’s well-intentioned mandate, the inclusion of proportionality in our rules of discovery has the potential to produce the exact opposite of the results envisioned by the majority. The proportionality requirement will serve as an impediment to a justice that is timely, and it will prove to be far from cost-efficient.

As discussed in the commentary of attorney Thomas Edwards, Jr., a member of the Workgroup on Improved Resolution of Civil Cases within the Judicial Management Council, the proportionality changes to the scope of discovery are not a good fit in our state’s civil judicial system because of practical differences in the operations of state and federal courts. Notably, the case load of federal judges is smaller than that of state court judges, and federal trial judges have far more resources to assist them with the strict mandates of rule 26(b)(1). As Mr. Edwards and other participating attorneys observed during oral argument, unlike Florida trial judges, federal district court judges have the assistance of up to three law clerks to assist with discovery disputes. These judges may also rely on the aid of magistrate judges, who also have the assistance of law clerks.

What is more, given the strict deadlines mandated by these amendments to our rules of civil procedure, it will be difficult for practitioners to get hearing time to consider proportionality objections without impairing case management order deadlines. Many proportionality objections will require evidentiary hearings and are likely to cause tension with newly rewritten rule 1.460 which frowns upon continuances: “[m]otions to continue trial are disfavored and should rarely be granted and then only upon good cause shown.” While rule 1.460 authorizes trial judges to impose sanctions “[i]f a continuance is granted based on the dilatory conduct of an attorney or named party,” rule 1.280 does not authorize sanctions for dilatory boilerplate proportionality objections.

Bolstering my concern about the potential impact of the proportionality mandate is the practical impact of applying federal rule 26(b)(1). Rule 26(b)(1) has been challenging enough in the federal courts that multiple advisory notes have been added over the years, and litigation has ensued to determine its scope. In recognition of this reality, our majority has added a “Court Commentary to rule 1.280 to explain that the Court has adopted almost all the text of federal rule 26(b)(1) and that it is ‘to be construed and applied in accordance with the federal proportionality standard.’ ” Majority op. at 3. However, I am unconvinced that this guidance will be sufficient to mitigate the significant changes that the proportionality mandate imposes upon Florida’s state courts.

My concerns about the proportionality language notwithstanding, I enthusiastically join the majority in thanking The Florida Bar’s Civil Procedure Rules Committee and the many commenters for their hard work, dedication, and valuable recommendations. This effort was a truly heavy lift. In my previous life as chief justice, I had the opportunity and pleasure to work with many of the lawyers and judges who dedicated so much of their time to this massive undertaking. Their dedication to our judicial system is immeasurable.

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[Editor’s note: The following corrections have been made (page numbers reference the court’s slip sheet).]

On p. 5, lines 8-11, “[a] party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied, except when authorized by these rules, by stipulation, or by court order.” is now changed to “[a] party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied, except when authorized by stipulation or by court order.”

On p. 32, lines 5-8, “A party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied, except when authorized by these rules, by stipulation, or by court order.” is now changed to “A party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied, except when authorized by stipulation or by court order.”

On p. 46, lines 17-19, “that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action,” is now struck-through.

On p. 46, line 20, the comma after “justified” is now struck-through.

On p. 49, lines 18-23, “Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action.” is now struck-through.

On p. 49, line 24, “(3)” is now changed to “(2)”.

On p. 49, line 29, “(4)” is now changed to “(3)”.