Advertising Disclosure Email Disclosure

Amendments to Florida rules of civil procedure

January 1, 2011

The Florida Supreme Court recently amended the Florida Rules of Civil Procedure. The changes take effect on January 1, 2011, at 12:01 a.m. Here are some of the most significant amendments to the Rules. New Rule 1.071 provides the procedure for notifying the Attorney General or State Attorney of a challenge to the constitutionality of a statute or a county or municipal charter, ordinance or franchise, as required by § 86.091, Fla. Stat. The rule does not require joinder of the Attorney General or State Attorney as a party. A notice must be filed and served by certified or registered mail, identifying the provision challenged and the document or paper raising the challenge. A new form, 1.975, is adopted for the notice. Rule 1.080(b) is amended so that service by delivery shall be deemed complete on the date of delivery. The Supreme Court specifically declined to adopt a proposal to allow the extra five days for mailing time to apply to hand deliveries. New Rule 1.285 provides a new procedure for handling the inadvertent disclosure of privileged materials. Within 10 days of discovering the disclosure, the person asserting the privilege must serve written notice asserting the privilege specifying with particularity the materials, the nature of the privilege, and the date of disclosure. The party receiving the notice must then promptly return, sequester, or destroy the materials, and notify anyone to whom it has disclosed the documents to take reasonable steps to retrieve them. If the person who received the documents wants to challenge the assertion of privilege, notice, specifying the grounds of the challenge, must be served within 20 days of service of the original notice of privilege. Failure to challenge within 20 days waives the privilege. If the court determines the materials are privileged or that the right to challenge the privilege has been waived, it shall direct what is to be done with the documents to preserve them for appellate review. The challenger must notify everyone to whom it has disclosed the documents of the court’s ruling. Rule 1.310 is amended and now requires that a deposition subpoena served on the person to be examined shall state the method for recording the testimony. It also says that Rule 1.351 provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents. “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.” Rule 1.351 is also amended to state that it is the exclusive method. Rule 1.340 is amended to clarify that service of fewer than all of the standard initial interrogatories is permitted. Rule 1.360 requires that, if the physical examination of a party is to be recorded or observed by others, the request or response shall also include the number of people attending, their role, and the methods of recording the findings. There is no record to suggestion that this change was intended to overrule established case law regarding the right of the examinee, but not the examining party, to record the examination or to have an attorney or court reporter attend. See U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000); Chavez v. J&L Drywall, 858 So.2d 1266 (Fla. 1st DCA 2003); Prince v. Mallari, 36 So.3d 128 (Fla. 5th DCA 2010). Rule 1.420 is amended to clarify that a plaintiff may voluntarily dismiss, by notice, an action, a claim, or any part of a claim without court order. If it is done by stipulation, it need only be signed by all current parties, not by all parties who have appeared in the case at any time. Costs attributable solely to any dismissed claim may be assessed, but only when all claims are resolved at the trial level as to the party seeking taxation of costs. Rule 1.442 is amended to allow unapportioned joint proposals to or from a party which is solely vicariously, constructively, derivatively or technically liable. Acceptance by any party shall be without prejudice to rights of contribution or indemnity. Rule 1.470 specifies that the standard jury instructions on the Supreme Court’s website should be used if applicable. If the Committee Notes state that a certain kind of instruction should not be given, the judge should follow that, as well. The judge may vary from these requirements, but only when necessary to accurately and sufficiently instruct the jury. Parties must object to preserve error in varying from the published standard instructions and notes. Rule 1.480(b) is amended to conform to Fed. R. Civ. P. 50(b), eliminating the requirement for renewing at the close of all the evidence a motion for directed verdict already made at the close of an adverse party’s evidence. Rule 1.525 now requires a motion for fees to be made within 30 days of filing a judgment, dismissal, or service of notice of voluntary dismissal which concludes the Action as to a particular party. Rule 2.420 of the Florida Rules of Judicial Administration has been amended, effective October 1. It now requires attorneys to redact confidential information such as social security and bank account numbers, juvenile records, adoption records, and grand jury records. The rule contains a list of items that are deemed confidential. A form must accompany any court filing that includes confidential information, indicating what the information is and where it is in the document. If a lawyer thinks information is confidential but it doesn’t fall within the categories on the form, a separate motion must be filed.

Case Law Alert - 1st Qtr 2011

Affiliated Attorney

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."