New Rules and Amendments

The Following Rules have been updated pursuant to the Florida Supreme Court’s September 8, 2010 Order.

In addition, the Florida Supreme court created the following rules:

New Procedures To Protect Confidentiality of Court Records Start Oct. 1, 2010

On March 18, 2010, the Florida Supreme Court enacted substantial amendments to Florida Rules of Judicial Administration 2.420, which governs public access to court records.  These changes go into effect on October 1, 2010.

The new rule places the burden on the attorney to designate records as confidential at the time they are filed with the Court.  Nineteen types of records are considered presumptively privileged:
(i) Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, neglect, and abandonment. § 39.0132(3), Fla. Stat.
(ii) Adoption records. § 63.162, Fla. Stat.
(iii) Social Security, bank account, charge, debit, and credit card numbers in court records. § 119.0714(1)(i)–(j), (2)(a)-(e), Fla. Stat. (Unless redaction is requested pursuant to 119.0714(2), this information is exempt only as of January 1, 2011.)
(iv) HIV test results and patient identity within those test results. § 381.004(3)(e), Fla. Stat.
(v) Sexually transmitted diseases – test results and identity within the test results when provided by the Department of Health or the department‘s authorized representative. § 384.29, Fla. Stat.
(vi) Birth and death certificates, including court-issued delayed birth certificates and fetal death certificates. §§ 382.008(6), 382.025(1)(a), Fla. Stat.
(vii) Identifying information in a petition by a minor for waiver of parental notice when seeking to terminate pregnancy. § 390.01116, Fla. Stat.
(viii) Identifying information in clinical mental health records under the Baker Act. § 394.4615(7), Fla. Stat.
(ix) Records of substance abuse service providers which pertain to the identity, diagnosis, and prognosis of and service provision to individuals who have received services from substance abuse service providers. § 397.501(7), Fla. Stat.
(x) Identifying information in clinical records of detained criminal defendants found incompetent to proceed or acquitted by reason of insanity. § 916.107(8), Fla. Stat.
(xi) Estate inventories and accountings. § 733.604(1), Fla. Stat.
(xii) The victim‘s address in a domestic violence action on petitioner‘s request. § 741.30(3)(b), Fla. Stat.
(xiii) Information identifying victims of sexual offenses, including child sexual abuse. §§ 119.071(2)(h), 119.0714(1)(h), Fla. Stat.
(xiv) Gestational surrogacy records. § 742.16(9), Fla. Stat.
(xv) Guardianship reports and orders appointing court monitors in guardianship cases. §§ 744.1076, 744.3701, Fla. Stat.
(xvi) Grand jury records. Ch. 905, Fla. Stat.
(xvii) Information acquired by courts and law enforcement regarding family services for children. § 984.06(3)-(4), Fla. Stat.
(xviii) Juvenile delinquency records. §§ 985.04(1), 985.045(2), Fla. Stat.
(xix) Information disclosing the identity of persons subject to tuberculosis proceedings and records of the Department of Health in suspected tuberculosis cases. §§ 392.545, 392.65, Fla. Stat.
If an attorney believes information should be kept confidential, but is not within the 19 specifically identified areas, a motion must be made to the Court seeking to have such records designated as confidential.
In support of the changes to Rule 2.420, the Florida Supreme Court amended Rules 9.040 and 9.100 of the Florida Rules of Appellate Procedure, which have been updated to reflect the amendments.
These new procedures go into effect on October 1, 2010.  Further coverage can be found in the Florida Bar News.
Amended Rules:

LUZ ELISABETH DIAZ v. BELL MICROPRODUCTS-FUTURE TECH, INC., 35 Fla. L. Wkly D1931a (Fla. 3d DCA Aug. 25, 2010)

This guaranty case states the simple rule that “pleadings are required to be in the English language.” The lender’s complaint against the borrower attached a copy of the guaranty in Spanish, a “Garantia Personal.”  It was not translated into English. The trial court granted summary judgment for the lender. The appellate court reversed, reasoning that the “Garantia Personal” was made part of the complaint under Rule 1.130 and therefore the pleading was not “in the English Language.” Interestingly, the appellate court did not address whether the borrower spoke English only, Spanish only, or both English and Spanish.

LUZ ELISABETH DIAZ v. BELL MICROPRODUCTS-FUTURE TECH, INC., 35 Fla. L. Wkly D1931a (Fla. 3d DCA Aug. 25, 2010)

Big Rules Update from the Florida Supreme Court

We’re working to get the rules pages updated to reflect the latest changes to the Rules of Civil Procedure by the Florida Supreme Court.  In the meantime, you can read all about it in this weeks edition of the Florida Civil Litigation Reporter, which we are providing for free.  Go to www.FloridaCivLitReporter.com to find out how you can subscribe and get weekly civil litigation case updates.

Florida Civil Litigation Reporter Vol. 1 No. 5

HSBC v. Freitas, Case No. 2007-CA-007993 (Fla. 12th Cir. Sept. 2, 2010)

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In this foreclosure action, after the Bank set, then failed to attend, a hearing on its Motion for Summary Judgement seven (7) times, the Court, sua sponte, issued an Order to Show Cause as to why the Bank’s counsel, Smith, Hiatt, and Diaz, should not be held in contempt of court.  Following a hearing on the Order to Show Cause the Court found:
[Smith, Hiatt and Diaz] operates its procedures in the above styled case and in the representation of Plainitffs in mortgage foreclosures in deliberate and contumacious disregard for the authority of the Court, the efficient administration of justice, and in utter disregard for the consequences to other litigants.  Their disobendience of Court Orders is constant and flagrant, and, therefore, justifies this Court’s imposition of sanctions for contempt.
While Smith, Hiatt, and Diaz argued that it had implemented procedures that would prevent future scheduling problems, the Court found that the law firm had failed to appear for another Summary Judgment hearing before the Court the morning of the Contempt hearing.
Accordingly, the Court entered sanctions against the law firm, awarding the homeowners lost wages incurred as a result of taking off work to attend the Summary Judgment hearings.  My colleague, attorney Scott Petersen, represented the Homeowners Association, which was awarded attorneys’ fees for the time spent hearings after filing a Motion to Compel foreclosure.
Finally, the Court fined the law firm $49,000, constituting $7,000 for each hearing the firm scheduled but failed to appear at.
The case was covered by the Sarasota Herald Tribune.