Law Offices of Robin Bresky Is Ready to Handle Appeals of Issues under the New Electronic Discovery Rules

On July 5, 2012, the Florida Supreme Court made several changes to the Florida Rules of Civil Procedure that will take effect on September 1, 2012 regarding discovery of electronically stored information (“ESI”). See In Re: Amendments to the Florida Rules of Civil Procedure—Electronic Discovery (Case No. SC11-1542).

For the first time, Rule 1.280 will expressly authorize discovery of ESI (but will also specify certain limitations that a court may place on discovery of ESI). The amendments could lead to some interesting appellate issues in future cases.

Rule 1.200 will allow the trial court to consider various issues related to electronic discovery during a pretrial conference; the need for advance rulings on the admissibility of some ESI; and the possibility of an agreement between the parties as to the extent to which ESI should be preserved and how it should be produced.

Rule 1.201 will require the parties in complex civil litigation to address the possibility of an agreement as to the extent to which electronic information should be preserved and how it should be produced.

Rules 1.340 and 1.350 will allow for the production of ESI as an answer to an interrogatory or in response to a specific request (either in the form in which it is ordinarily maintained or in another reasonably usable form).

Rule 1.380 will ordinarily preclude a court from imposing sanctions for a party’s failure to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system.

Rule 1.410 will allow a subpoena requesting ESI. The person receiving the subpoena may object by showing that the information or the format requested is not reasonably accessible because of undue costs or burden, but the court can still order production for good cause if consistent with the limitations that will be provided in the new subsection (d) in Rule 1.280. The court may also specify conditions of the discovery, such as ordering that some or all of the expenses be paid by the party seeking the discovery of ESI.

The Law Offices of Robin Bresky stands ready to handle appeals involving electronic discovery issues, as well as other discovery issues and a wide range of appellate and litigation-support matters in state and federal cases.

Block v. Tosun
Case No. 4D11-1594

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting a motion to vacate an eighteen year old default judgment without an evidentiary hearing. The plaintiff trustees had obtained a default judgment against Tosun in 1992. Eighteen years later, with no record activity having occurred, the trustees served Tosun with a subpoena duces tecum in aid of execution. Tosun moved to vacate the default judgment, claiming he never received service of process. Tosun alleged in his motion that the court file that would contain the return of service had since been destroyed. Tosun also attached an affidavit in which he claimed no recollection of having received the complaint and summons, or the default judgment. However, the clerk’s progress docket contained an entry indicating that Tosun had in fact been served with process. The trial court granted Tosun’s motion to vacate following a non-evidentiary hearing.

On appeal, the Fourth DCA agreed with the trustees that the trial court had erred in concluding that their failure to provide a return of service required the court to set aside the final judgment as a matter of law. The trustees had met their burden by providing the clerk’s progress docket as well as the default judgment. The court stated that “[t]ogether these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not service of process on Tosun was properly perfected in 1992.” The Fourth DCA reversed and remanded for the trial court to conduct an evidentiary hearing on the issue.

Rothman-Browning v. Marshall
Case No. 4D11-2079

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order approving a guardianship plan over objection from a co-trustee. The co-trustee had filed the objection exactly thirty days after the guardianship plan was filed. The trial court approved the guardianship plan despite the co-trustee’s objection. The trial court later denied the objection as untimely without addressing the merits.

On appeal, the Fourth DCA examined section 744.367(4), Florida Statutes (2010), which provides that an interested person may file an objection to a guardianship plan “within thirty days” after filing of the guardianship report. The court also reviewed section 744.369(7), Florida Statutes (2010), which provides that, “[i]f an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection.” The Fourth DCA held that the plain language of the statutes entitles one who files an objection to a guardianship plan within thirty days of the filing of the guardianship plan to a hearing. The co-trustee had filed the objection timely, so the court remanded and reversed for the trial court to consider the objection.

While there are specific mandates under Florida law that require the Florida Supreme Court to grant review in certain instances, for most practitioners, getting your case heard by the Florida Supreme Court can seem as daunting as getting a front seat at the Kodak Theater during the Oscars.  Alas, Robin I. Bresky and Diana L. Martin have offered a practical guide for those practitioners seeking entry into the highest court in the state.  Robin Bresky co-authored Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, which was featured in the November 2009 issue of the Florida Bar Journal.  The article is intended to help practitioners navigate the Florida Supreme Court’s red carpet and assess the likelihood of gaining access behind its discretionary velvet ropes.

Florida Rule of Appellate Procedure 9.120 sets out the procedural mandates necessary to invoke the Florida Supreme Court’s jurisdiction.  The more challenging task, however, becomes convincing the Court to exercise its jurisdiction.  For example, Florida Supreme Court Clerk statistics indicate that of the cases submitted to the high court for consideration, only 7% of cases seeking discretionary review, which do not involve cases of certified questions or certified conflicts, are granted review.  On the other hand, the Court grants review in approximately 67% of cases that involve certified questions and approximately 83% of certified conflict cases.  See, Florida Appellate Practice § 3.21.  Therefore, in cases where the district court has not certified a question or certified a conflict, the true hurdle remains convincing the Court to accept discretionary jurisdiction.

In addition to outlining the relevant constitutional provisions and appellate rules, the article discusses eight categories of discretionary review and provides practical guidance, including outlining timeframes for attorneys considering an appeal to Florida’s Highest Court.  As highlighted above, the article cites useful statistics that illustrate the types of cases that make it through and those that do not fare as well.  It proves helpful not only to appellate practitioners, but more so to any attorney that has found himself in the position of advising a client on a decision to seek review in Florida’s Highest Court.  Afterall, it will take more than a “Best Dressed” nod from Joan Rivers to get you through these velvet ropes.  For more on Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, please visit www.breskyappellate.com for the complete article or refer to the November 2009 issue of the Florida Bar Journal.

Many of us are taught at a young age to trust the men and women of the cloth; cloth in this case consisting of a white poly-cotton blend lab coat.  In most cases, we trust our physicians with our lives and the lives of our loved ones.  As patients, we listen and do as directed by our doctors because afterall, they do know best.  In the context of medical malpractice, however, this doctor/patient relationship can become tenuous when the patient feels the doctor’s care has dropped below the acceptable standard and resulted in injury.   Trusting patients who feel they have been injured at the hands of a physician quickly turn into inquisitive clients in search of justice.  Our firm recently received a favorable Opinion from the Fourth District Court of Appeal in the context of a medical malpractice action.  Specifically, the decision hinged on the statute of limitations in the medical malpractice arena and when the time for said cause of action begins to accrue.

Florida Statue 95.11(4)(b) governs the limitations period for a medical malpractice action.  The section states that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”  In Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993), the Florida Supreme Court articulated the standard to be applied as follows:  “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also that there is a reasonable possibility that the injury was cause by medical malpractice.”  Certainly there are injuries that clearly are caused by medical malpractice.  For example, going into surgery to have a cyst removed from your hand and waking to find yourare missing your left leg.  But what happens when you experience a less conspicuous injury and although your body is telling you one thing, the physician whose continuing care you are under is reassuring you that all is well and that in time, things will be better?  This is the precise issue involved in our case.  Essentially there was a factual dispute as to when the patient knew or should have been aware that her injuries may have been the result of medical malpractice.  And, instead of submitting that question to the jury for determination, the judge decided at summary judgment that the statute of limitations had run.  The Fourth District Court of Appeal reversed the judge’s decision in our favor and found that the judge had erred in taking that question from the jury.  The Court, recognizing the inherent trust placed upon a physician by a patient, stated “too great is the faith laypersons place in their physicians for the law to impute a duty on them to investigate malpractice in every change in diagnosis or treatment.”  (quoting from Cunningham v. Lowery, 724 So. 2d 176, 179 (Fla. 5th DCA 1999).  Thus, it appears the courts have tried to impose a balance between patient accountability and the importance of preserving a trusting doctor/patient relationship during and throughout treatment.  Most important, however, is that the question will often hinge upon a factual determination and will more often than not be left to the province of the jury to decide.

Individuals that seek to appeal a lower court judgment that involves solely a monetary judgment, are entitled to an automatic stay by posting a good and sufficient bond, pursuant to Florida Rule of Appellate Procedure 9.310(b)(1). The rule requires the bond be set in an amount that equals the judgment amount plus twice the statutory rate of interest.  The bond may be in the form of a bond with a principal and a surety company authorized to do business in the State of Florida or may be cash deposited with the circuit court clerk’s of court.  The bond is deemed posted, thus making the automatic stay effective, on the date the bond is filed with the clerk of court.  But, appellants and trial counsel alike BEWARE.

The posting of a good and sufficient bond stays further proceedings and does not act to interfere with what has already been done.  This fact becomes of particular importance in the context of the issuance of a writ of garnishment.  If the money judgment involves a final adjudication as to amount, the party seeking to collect on the judgment may motion the court for a writ of garnishment.  Said writ will issue upon the filing of the motion and may be served upon, the owing party’s bank, which will likely result in a freeze of that party’s bank account or accounts.  Florida Statute section 77.0305 outlines the requirements and procedure for obtaining a writ of garnishment.

Therefore, it is prudent that appellants seeking review of a final money judgment entered against them, who likewise seek an automatic stay pending review under Rule 9.310(b)(1), act expeditiously in posting a good and sufficient bond.  In the instance that a writ of garnishment has already issued, posting a bond after the fact only serves to stay further garnishment proceedings, but the posting of the bond will not un-freeze any bank accounts that may have already been frozen upon service of the writ of garnishment.  The posting of the bond will, however, stay further collection proceedings.  In short, individuals seeking to stay collection proceedings when seeking review of a final monetary judgment in the appellate court must act quickly and be sure that a good and sufficient bond is posted with the circuit court clerk as soon as possible.

Florida Rule of Appellate Procedure 9.200 dictates what documents shall be included in the record on appeal.  In relevant part, the rule states:

Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcripts(s) of proceedings, if any, filed in the lower tribunal….

9.200(a)(1), Fla. R. App. P.  The record, and the documents that comprise the record, become of great import when an appellate court is reviewing a final decision of a lower tribunal.  Generally, decisions of lower courts are presumed to be correct and unless the presumption of correctness is overcome by matters crystallized in the record of the proceedings, the appellate court will affirm the order or judgment on review.  There are, however, instances in which a document that was not formally filed in the lower tribunal may be permitted to supplement the record on appeal.

For example, we recently handled a family law appeal wherein a psychologist in the case below rendered an opinion that the wife had been the victim of battered spouse syndrome throughout the marriage.  At trial, however, the doctor testified orally but his deposition testimony was never entered into evidence.  Nevertheless, opposing trial counsel sought to impeach the doctor’s oral testimony and alluded to his deposition testimony in an attempt to show that the doctor’s opinion had changed from the time of the deposition to that of trial.

One of the findings the trial court made in its final order was that the doctor had changed his expert opinion at trial from that which he gave at his deposition.  On appeal, we sought to introduce the doctor’s deposition testimony to show that his opinion had not in fact changed when he gave his oral testimony at trial.  We filed a motion to supplement the record on appeal with the doctor’s deposition testimony, pursuant to Fla. R. App. P. 9.200(f).  Opposing appellate counsel objected to our motion on the ground that the doctor’s deposition was not entered into evidence.  The District Court, however, ruled in our favor, based on our argument that the trial court below relied upon the deposition testimony to the extent the final order included a finding that the doctor’s deposition testimony changed at trial.  Therefore, as you can see factual situations do arise in which a District Court may permit the record on appeal to be supplemented with a document that was not officially included in the record, even over the objection of opposing counsel.

In addition to our appellate practice, we also offer litigation support including, but not limited to, drafting complex motions and memoranda of law for attorneys throughout all phases of pre-trial litigation.  The firm was recently retained to draft a memorandum of law on the application of Florida Statute 61.13001.  Specifically, the trial court requested that counsel prepare a memorandum addressing whether section 61.13001, the Parental Relocation with a Child, applied in the absence of a prior court order.  In this particular case, the mother sought an expedited hearing on relocation and we, on behalf of the father, contended that under section 61.13001, the father was entitled to file an objection to relocation and that further the court should make the considerations and findings sufficient to support relocation in a final judgment, pursuant to section 61.13001(6)(b).  Our efforts resulted in a victory for the client and the wife’s motion for expedited hearing was denied.

Section 61.13001 became effective October 1, 2006 and was intended to define and clarify the relocation process.  A literal reading of the statute, however, suggests that the statute only applies where there is an existing order in place.¹  But, this literal reading of the statute would contravene the intent in Florida to be sure that all custody and relocation matters be determined in accordance with the best interests of the child.  Interestingly, the Florida Supreme Court has proposed an amendment to the Family Law Rules of Procedure, Rule 12.635², which would apply “to all proceedings to relocate the residence of a child under section 61.13001, Florida Statues,” without regard as to whether there is a prior court order in place.

It remains to be seen whether the proposed amendment will become effective.  It is also unclear as to how the trial courts will interpret and apply the relocation in the absence of a prior court order.  It seems counterintuitive to have such a formal procedure established for the consideration of a child’s relocation and only have the procedure apply at the existence of previous court order.  It seems the more practical application, as illustrated by the proposed amendment, is to consider all factors as set forth in section 61.13001 anytime the issue of a child’s relocation is brought before the court, irrespective of whether there has been a previous determination in the form of a court order.

¹ APPLICABILITY. –This section applies:
1. To orders entered before October 1, 2006, if the existing order defining custody, primary residence, time-sharing, or visitation of or with the child does not expressly govern the relocation of the child.
2. To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or visitation of or with the child entered on or after October 1, 2006.
3. To any relocation or proposed relocation, whether permanent or temporary, of a child during any proceeding pending on October 1, 2006, wherein the parenting plan, custody, primary residence, time-sharing, or visitation of or with the child is an issue.
(b) To the extent that a provision of this section conflicts with an order existing on October 1, 2006, this section does not apply to the terms of that order which expressly govern relocation of the child or a change in the principal residence address of a parent.
2 See, http://www.floridasupremecourt.org/decisions/proposed.shtml.

Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers to third parties. This privilege is fundamental to preserve the right to effective legal counsel. Lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence.

With that said, as an appellate attorney, I was successful in overturning a trial court’s decision denying a protective order—preventing the disclosure of attorney client communication.[1] In a case, where a son was suing his mother, we filed a Writ of Certiorari on a discovery issue—a litigation process during which each party requests relevant information and documents from the other side in an attempt to “discover” pertinent facts. The information the son was seeking from the mother, I believed to be attorney-client privilege.

By filing for a Writ of Certiorari, often referred to as a Writ of Cert, I swiftly completed a petition explaining to the appellate court the reasoning that the trial court’s interlocutory order needed to be reversed. After evaluating the petition the appellate court decides whether or not to grant a show cause order to the opposing party. If the court issues a show cause order the opposing party answers the petition. In this particular case the court issued a show cause order and the reply was submitted by the opposing parties’ council.

In less than two months the appellate agreed with our position and the Writ of Cert I filed was granted; and the trial courts decision denying the protective order was overturned. Had we not petitioned the appellate court with the Writ of Cert, the opposing party would have access to privileged information. Thus, I was able to prevent letting the proverbial cat out of the bag.

Robin Bresky, Law Offices of Robin Bresky

[1] A large part of my practice is drafting pre-trial litigation as well as appellate briefs. Please note, in the case stated above, I was hired as a ghostwriter for another attorney who sought my services, because of my extensive knowledge on appellate law. In addition to my own clients, I offer litigation support to other attorneys that seek my expertise.