TALLAHASSEE, FL – December 5 brought the latest—and apparently final—development in the Supreme Court of Florida’s long-running effort to transform the way civil litigation proceeds in Florida’s trial courts. The court issued two opinions announcing a barrage of amendments that are designed to hustle cases along as efficiently as possible while also allowing for variation within circuits and the unique needs that crop up in each individual case.
These amendments touch on virtually all parts of civil pre-trial practice. Without careful attention to the nuances of the new rules and the development of robust internal practices to ensure compliance with them, even experienced civil litigators could rapidly find themselves in a substantial tangle.
Of particular note, the court adopted the proportionality-of-discovery language of Federal Rule of Civil Procedure 26(b)(1) into the Florida Rules of Civil Procedure, and instructed that courts should “look to federal history and precedents” when applying the proportionality requirement. As with the earlier amendments to Rule 1.510 importing the federal summary-judgment standard, the apparent effect of this amendment is to merge the complete corpus of federal law concerning the proportionality standard into Florida law. Any federal district or circuit court decision on the subject is not only fair game, it is part of the law the court must apply.
And, also like the Rule 1.510 amendments, this creates the possibility for interesting questions on appeal. If there is a conflict between two federal decisions, how is the trial court to resolve that conflict? In the event of such a conflict, is it reversible error to side with a district court from one circuit rather than a circuit court from another? Should Florida courts favor the decisions of the United States Court of Appeals for the Eleventh Circuit, or do Florida courts constitute a de facto “Thirteenth Circuit,” hitherto only seen in Moot Court hypotheticals, which is free to pick and choose amongst the jurisprudence of the federal courts as it judges fit? Only time will tell.
In an apparent attempt to redress the possibility that litigants will leverage the proportionality requirement as a means of delaying or frustrating legitimate discovery requests, the court added a requirement that objections to interrogatories and requests for production must be stated with specificity and must include the reasons for the objections. This is essentially a codification of what Florida’s discovery doctrine already required, though these requirements were more frequently honored in the breach than they were followed. One hopes that codifying the requirement will improve compliance; but in any event, it does impose a potential pitfall in that the failure to provide an adequate objection in the first instance could result in a waiver of that objection, and a party moving to compel proper responses now has a rule provision to hang their hat on.
Also noteworthy is the newly created Rule 1.202, which imposes a duty to confer with the opposing party before filing a non-dispositive motion. The rule also requires such a motion to include a certification that follows a particular formula, certifying that the movant conferred or attempted to confer with the opposing party before filing the motion. One subdivision of the rule sets forth an extensive list of motions to which the conferral requirement does not apply, and another imposes sanctions for both failing to comply with the conferral requirement and also for “purposeful evasion of communication under this rule.” The rule requires a movant to “describ[e] with particularity all of the efforts undertaken to accomplish dialogue with the opposing party prior to filing the motion” but does not include any particular requirement about what such efforts ought to be. Given the lack of express requirements, it seems reasonable to expect that much litigation will ensue over the collateral issue of whether the movant’s efforts at conferral were sufficient.
About Bailey Howard
Bailey Howard is an attorney in the firm’s Tallahassee office. His practice focuses on appellate litigation and trial support; commercial litigation; business and corporate law; and real estate.