Monday, July 30, 2012

New Opinions


Zirkelbach Constr. v. Rajan, 2012 Fla. App. LEXIS 12200 (Fla. 2d DCA July 27, 2012) revisits the conflict between the Fourth District Court of Appeal and all the other districts regarding work product.  All of the district courts hold generally that the work product privilege attaches to statements and materials prepared by a party’s investigator or insurer in anticipation of litigation.  The district courts differ concerning the meaning of “prepared in anticipation of litigation.”  In the Fourth District, materials do not constitute protected work product unless they were prepared when the probability of litigation was “substantial and imminent.”  The other districts apply a less stringent foreseeability standard where materials such as these may qualify as work product even if no specific litigation was pending at the time the materials were compiled. Thus, even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.  To date, the Supreme Court of Florida has not resolved the conflict among the district courts on this issue.,%202012/2D11-3813.pdf


Althouse v. Palm Beach County Sheriff's Office, 2012 Fla. App. LEXIS 12109 (Fla. 4th DCA July 25, 2012) explained that the issue of entitlement to fees and costs under F.S. §119.12 depends on whether the agency’s refusal was lawful, which in turn hinges on whether the public entity had a “reasonable” or “good faith” belief in the soundness of its position in refusing production.


Soronson v. State Farm Fla. Ins. Co., 2012 Fla. App. LEXIS 12100 (Fla. 4th DCA July 25, 2012) affirmed summary judgment for the insurer where the insureds gave notice of their claim three years after the hurricane instead of complying with the policy.  The court agreed with the insurer that the policy provisions requiring the insureds to give notice of the loss and submit a sworn proof of loss within 60 days of the loss were conditions precedent to suit, and not a breach of cooperation clauses, and that the delayed discovery rule did not apply.  The untimely notice is presumed to have prejudiced the insurer. Thus, the burden shifted to the insureds to show that the insurer was not prejudiced.  Here, the insureds failed to come forward with sufficient counter evidence to reveal a genuine issue of material fact.

Sunday, July 29, 2012

New Rules from the Florida Supreme Court


In Re: Amendments to the Florida Rules of Judicial Admin., etc., --- So. 3d --- (Fla. July 12, 2012) adopted new Florida Rule of Judicial Administration 2.514.  The old Florida Rule of Civil Procedure 1.090 simply cross-references Rule 2.514.  Substantively, little has changed.  The additional 5 days for service is still present at Rule 2.514(b), whether it is made my mail or e-mail.



In Re: Amendments to the Florida Family Law Rules of Procedure, --- So. 3d --- (Fla. July 12, 2012) basically just adds stalking language.

Third DCA Opinions


Herdman v. Herdman, --- So. 3d --- (Fla. 3d DCA July 25, 2012)

I always found that writing a dissent when the majority writes a PCA is like shadow-boxing.  It gives you a good workout but doesn’t accomplish anything.  I also felt that if I took the time to write a dissent, as a matter of collegiality, the majority ought to respond by stating its reasons for affirmance.  Of course, a PCA, even with a dissent, cannot be appealed to the supreme court.


Stratton v. 6000 Indian Creek, LLC, --- So. 3d --- (Fla. 3d DCA July 25, 2012) makes clear that where the bank was the prevailing bidder at a foreclosure sale and subsequently deeded its rights to a Trust, the Trust had standing to enforce the judgment by seeking a writ of possession.  The defendant and counsel were assessed fees for pursuing frivolous defenses and the appeal.


Delva v. The Continental Group, Inc., --- So. 3d --- (Fla. 3d DCA July 25, 2012) held that the Florida Civil Rights Act, F.S. §760.10, does not prohibit discrimination in employment on the basis of pregnancy.  The court certifies conflict with the 4th DCA.


General Star Indemnity Co. v. Atlantic Hospitality of Fla., LLC, --- So. 3d --- (Fla. 3d DCA July 25, 2012) quashed an order allowing disclosure of “classic bad faith materials.”  Basically a discovery order cannot compel production of materials concerning the insurer’s business policies and practices before there has been a determination of coverage and the extent of the loss.

Saturday, July 7, 2012

Just as I was sending in my update to the printer (Lexis), the Florida Supreme Court comes out with the new, much anticipate rules for eDiscovery.  The new amendments affect seven civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena).

You better learn what ESI is (Electronically Stored Information).  When I first joined the Third District, all the judges had computers, but some would not even turn it on.  I don’t think my friend Mario even knew how.  Then e-mail made it hard to avoid the use of computers.  We’ve come a long way!

I think the crux is in rule 1.280 (General Provisions Governing Discovery) which was amended to expressly authorize discovery of electronically stored information. There is a new subdivision (d), which provides some specific limitations on discovery of ESI. Under new subdivision (d)(1), a person may object to a discovery request seeking electronically stored information. On a motion to compel discovery, or a motion for a protective order, the person from whom the discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If this showing is made, the court may nonetheless order the discovery if the requesting party shows good cause. However, the court may specify certain conditions of discovery, including ordering that some or all of the expenses incurred while complying with the discovery request be paid by the party seeking the discovery. Under subdivision (d)(2) the court, in addressing a motion pertaining to discovery of ESI, must limit the frequency or extent of discovery if it determines that the information sought is: (i) unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit.

Rule 1.340 (Interrogatories to Parties) and rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) were both amended to allow for the production of electronically stored information, either as an answer to an interrogatory or in response to a specific request. Both rules now allow a party to produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form.

Rule 1.380 (Failure to Make Discovery; Sanctions) was amended to provide that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system.

The effective date is September 1, 2012, at 12:02 a.m.  There must be a reason the court did not make it 12:01.

Sunday, July 1, 2012