On September 8, 2010, the Florida Supreme Court adopted new rules and amended existing rules of the Florida Rules of Civil Procedure. The current Westlaw citation is 2010 WL 3488983. These new and amended rules went into effect on January 1, 2011, so if you practice civil litigation, you better know them.
New rule 1.285 deals with the inadvertent disclosure of privileged materials. Under the new rule, within 10 days of actually discovering the inadvertent disclosure of any privileged material, a party may assert any privilege by serving written notice on the party to whom the materials were disclosed. The notice must specify with particularity the materials to which the privilege is asserted, the nature of the privilege asserted, and the date on which the inadvertent disclosure was actually discovered.
A party receiving notice must promptly return, sequester, or destroy the materials specified in the notice along with any copies. In addition, the receiving party must promptly notify any other person to whom it has disclosed the materials that notice has been served and its effect. The other person must also take all reasonable steps to retrieve the inadvertently disclosed materials. This rule does not change any obligations under R. Regulating Fla. Bar 4-4.4(b), requiring attorneys who receives a document that they know or reasonable should know that the document was inadvertently sent to promptly notify the sender.
Under subsection (c), the receiving party may challenge the assertion of privilege. The grounds for the challenge may include, but are not limited to, the following: (1) the materials are not privileged; (2) the disclosing party lacks standing to assert the privilege; (3) the disclosing party failed to timely serve notice; or (4) the circumstances surrounding the disclosure warrant a finding that the party waived its right to assert the privilege. Any party wishing to challenge must serve notice within 20 days of service of the original notice, which notice must specifically state the grounds for the challenge. Failure to timely serve notice of the challenge waives the right to challenge.
When the court orders that the materials are privileged or the right to challenge has been waived, the court must direct what shall be done with the materials and any copies to preserve all rights of appellate review. The recipient of materials must give notice of the court’s ruling to any other person to whom it had disclosed the materials.
New Rule 1.071 states a party that files a pleading questioning the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must promptly (1) file a notice of constitutional question stating the question and identifying the paper that raises it, and (2) serve the notice and pleading on the Attorney General or the state attorney of the judicial circuit in which the action is pending by either certified or registered mail. Pursuant to section 86.091, Florida Statutes, the Attorney General or state attorney has discretion to participate in the matters affecting the constitutionality of a statute. New Rule 1.975 provides a form for the notice.
Amended Rule 1.080 (service of pleadings and papers) treats service by hand delivery after 5:00pm the same as service by mail. This amendment does not equate service by hand delivery to service by mail such that it triggers the additional 5 days for responsive pleadings after service by mail as provided under rule 1.090(e).
Amended Rule 1.100(c)(1) (pleading captions) provides that in any in rem proceeding, including forfeiture proceedings, the caption must contain: (1) the name of the court, (2) the file number, (3) the style “In re” (followed by the name or general description of the property), and (4) a designation of the person or entity filing it and its nature or the nature of the order, as the case may be. In an in rem forfeiture proceeding, the style shall be “In rem forfeiture of” (followed by the name or general description of the property). Form 1.901 was amended to reflect his amendment.
Amended Rule 1.310(b)(5) (depositions) clarifies that the procedure set forth in rule 1.351, which governs production of documents without deposition, must be followed when requesting or receiving documents or things without testimony from nonparties pursuant to a subpoena. The amendment is intended to prevent the use of rules 1.310 and 1.410 to request documents from nonparties pursuant to a subpoena without giving the opposing party the opportunity to object to the subpoena before it is served on the nonparty as required by rule 1.351.
Amended Rule 1.351 (production of documents without deposition) clarifies that the procedure set forth in rule 1.351, not rule 1.310.
Amended Rule 1.340 (Interrogatories) provides that if the Supreme Court has approved a form of interrogatories for a type of action, the initial interrogatories on the subject must be from the form approved by the court. A party may serve fewer than all of the approved interrogatories in the form.
Amended Rule 1.360 (examination of persons) provides that if an examination is to be recorded or observed by others, the request or response must include the number of people attending, their role, and the method or methods of recording.
Amended Rule 1.410 (subpoenas) provides that subpoenas must state the method for recording testimony.
Amended Rule 1.420 (dismissal of actions) provides that when one or more claims remain pending following the dismissal of any claim, taxable costs attributable solely to the dismissed claim may be assessed and judgment for costs entered in the action, but only when all claims are resolved at the trial court level as to the party seeking taxation of costs.
Amended Rule 1.442 (proposals for settlement) provides that when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party will not prejudice rights of contribution or indemnity.
Amended Rule 1.470(b) (jury instructions) requires the court to use published standard jury instructions where applicable and necessary, to permit the judge to vary from the published standard jury instructions and notes only when necessary to accurately and sufficiently instruct the jury, and to require the parties to object to preserve error in variance from published standard jury instructions and notes. Form 1.985 was amended to reflect the amendment to rule 1.470.
Amended Rule 1.480(b) (motion for directed verdict) eliminates the requirement of renewing at the close of all evidence a motion for directed verdict already made at the close of an adverse party’s evidence.
Amended Rule 1.510 (summary judgment) cleans up the language regarding timing of filing summary judgment evidence and rendering summary judgment. There were no substantive changes.
Amended Rule 1.525 (motions for fees and costs) adds language that judgment or notice of voluntary dismissal which triggers the 30 days to file the motion must conclude the action as to that party.
Lastly, the Court amended form 1.923 regarding resident eviction summons and form 1.986 regarding verdicts.