Judge Facciola rejects overbroad DOJ applications to search emails

Magistrate Judge John Facciola has strongly rejected the DOJ's attempt to search and seize personal email. The opinion is here. And I couldn't articulate its significance any better than Ralph Losey, who does it here. Read it all. 

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Scanner pro--regularly 6.99--is free! Not to be missed. https://itunes.apple.com/us/app/scanner-pro-by-readdle/id333710667?mt=8.

Changes to Florida E-Filing Portal

The Florida E-Filing Portal has implemented several changes to the website last week, of which one deserves emphasis.

When you upload your file, you now need to check the appropriate button as shown here:

Note that the attorney must certify compliance, regardless of whether the document is being e-filed by the attorney or by his or her designee, so all attorneys must insure that the rules are complied with before instructing their assistant to e-file.

Please recall that Rule 2.420(d) delineates court records that are deemed confidential—and therefore cannot be filed. Rule 2.425 (a) lists additional personal information—e.g., day and date of a birthday, social security numbers, anything but the last four digits of a driver’s license, etc.—that must not contained within a filed document.

The other changes to the portal are summarized in this document.

Careful: Rule 2.514(b) does not apply to notices of appeal or petitions for writs!

The losing petitioner in Miccosukee Tribe v. Lewis, 38 Fla. L. Weekly D2088 (Fla. 3rd DCA October 2, 2013), learned a lesson the hard way.  The order at issue was an order clarifying fact discovery deadlines. The petitioner filed a motion for reconsideration, and after losing that and 35 days after the original order, filed its petition.

1.     The petitioner argued that Judicial Administration Rule 2.514 (b) (“When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a)”)  rendered the petition timely since the order had been emailed. The Third District also rejected that argument, noting that “[t]he additional five-day time period applies when another rule requires a party to act within a specified time after service. Rule 2.514(b) affords no additional time when a rule (in this case rule 9.100(c)(1)) requires a party to act within a specified time after rendition of an order.”

n    The petitioner also argued that its motion for reconsideration had tolled the time to petition. The court rejected that as well, explaining that an unauthorized motion for rehearing does NOT toll the time for appeal (or, as in this case, a petition for a writ of certiorari).

One eService question answered....

Yesterday, the Florida Supreme Court issued an administrative order confirming that attorneys may relay on the e-filing portal for e-service. The Court stated that additional administrative orders will be forthcoming, so stay tuned for further developments.

Unanswered questions about Florida eservice

As you know, the eservice function on the e-filing portal is up and running. Surprisingly, there does not seem to be an associated rule change or administrative order. The new service raises issues such as:

• Is there still a need to file a designation of email addresses, since it is now done online when filing?
• How should the language of the certificate of service be changed?
• What do we do if the email addresses for opposing parties online do not match the email addresses they provided in their designation?

 

Any thoughts? 

IMPORTANT: STATE COURT E-FILING NOW INCLUDES E-SERVICE

The Florida e-filing site and e-filing emails look a little different today. That’s because STATE COURT E-FILING NOW INCORPORATES E-SERVICE. THIS MEANS THAT YOU NO LONGER HAVE TO SERVE COURT DOCUMENTS BY EMAIL (unless of course, you are dealing with a pro se party, or the document was not filed). I have confirmed this with the Miami-Dade Clerk's Office, and a Florida Bar article with more details is here.
There are several online training sessions available that I will distribute by separate email, but the process is pretty straightforward. Toward the end of the e-filing process you will see a screen similar to the screenshot below. If the email addresses in your e-filing profile are NOT the same ones you wish to use for e-service (e.g., if you have a paralegal working on a particular case that you want included), just type in the desired email addresses as indicated.

Beginning July 1, 2013, the Third District will REQUIRE e-filing of all documents at its e-filing site, eDCA.

Beginning July 1, 2013, the Third District will REQUIRE e-filing of all documents at its e-filing site, eDCA.  This is NOT the same site we have been using for the circuit and county courts.

Attorneys must register at eDCA to file documents and to receive orders from the court. The court began serving acknowledgement letters, orders, opinions, and mandates through eDCA on June 3, so you should register immediately and authorize the site to deliver those documents to you by e-mail. When you register, you should include your assistant’s email address as a secondary email so he or she receives all your appellate documents as well.

Even though e-filing will not be required until July 1, you MAY file all documents except briefs and petitions on eDCA now (after registering). (Before July 1, briefs and petitions should be e-mailed to 3dcaefiling@flcourts.org as usual per the old AO3D05-1. On and after July 1, briefs and petitions will be filed using the eDCA system.)

Attorneys and involved staff should review carefully the administrative orders issued last week, as well as the User’s Guide:

• Administrative Order 3D 13-02 RE: ELECTRONIC FILING OF NOTICES OF APPEAL BY LOWER TRIBUNAL CLERKS AND PAPERS AND MOTIONS BY COURT REPORTERS

•  Administrative Order 3D 13-03 RE: E-MAIL SERVICE OF COURT DOCUMENTS AND E-FILING BY REGISTERED USERS OF eDCA

•  Administrative Order 3D 13-04 RE: ELECTRONIC FILING OF APPELLATE RECORDS

•  Administrative Order 3D 13-05 RE: ELECTRONIC FILING OF APPENDICES

•  eDCA User Guide

 Please don’t hesitate to ask if you have any questions.

Reasonable seizure, unreasonable search

So held the Florida Supreme Court in Smallwood v. State, No. SC-1130 (Fla.. Sup. Ct. May 2, 2013). The court held that although police officers could seize a cellphone incident to an arrest, a search of the contents thereof required a warrant.

MORE IMPORTANT RULE CHANGES FROM THE FLORIDA SUPREME COURT ON E-MAIL SERVICE--PLUS A SPELLING LESSON

Today, the Supreme Court amended Rule 2.516 regarding e-mail service in several important respects. Here’s a summary of the rule changes:

• Parties can stipulate to methods of service other than email.
• The “Designation of email address(es)” need NOT be a separate pleading; rather an attorney must designate his or her e-mail addresses upon appearing in a proceeding.

And the spelling lesson? The only proposed change the Court rejected was to spell e-mail without the hyphen. E-mail is to be spelled WITH the hyphen, not without.

ABA approves judge use of social media.

On February 21, 2013, the American Bar Association issued Formal Opinion 462, entitled "Judge's Use of Electronic Social Networking Media." Unlike Florida, see Florida Sup. Ct. Jud. Eth. Adv. Comm. Op. 2009-20 (2009) (judge many not include lawyers who may appear before judge in social network or permit such lawyers to add judge to their social network circle), the ABA takes a more balanced approach:

Judicious use of ESM [electronic social media] can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges' use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection us as U.S. Mail, telephone, email or texting.

Formal Op. 462 at 4.

Fourth DCA Certifies Question of Whether Judge can be Facebook friend with Prosecutor

The Fourth District Court of Appeal has certified the following to be a question of great public
importance:

Where the presiding judge in a criminal case has accepted
the prosecutor assigned to the case as a Facebook “friend,”
would a reasonably prudent person fear that he could not
get a fair and impartial trial, so that the defendant’s motion
for disqualification should be granted?

DOMVILLE v. STATE OF FLORIDA, No. 4D12-556 [January 16, 2013]

Florida Supreme Court delays mandatory e-filing....again.

By order dated November 28, 2012, the Supreme Court of Florida once again changed the date on which e-filing rules will become effective. After considering the status report by the Florida Courts E-filing Authority, and the response by the Florida Courts Technology Committee, the Court ordered that the e-filing rules will be mandatory as follows:

• In the Supreme Court on February 27, 2013;
• In the Second District Court of Appeal on July 22, 2013
• In the Third District Court of Appeal on September 27, 2013; 
• In the Fourth District Court of Appeal on October 31, 2013;
• In the Fifth District Court of Appeal on November 27, 2013; and 
• In the First District Court of Appeal on December 27, 2013. 

The Court further ordered that the Chief Justice may make e-filing rules effective earlier on a voluntary basis in the Supreme Court by administrative by order of the chief justice. Similarly, each district chief judge may order that e-filing rule be effective earlier on a voluntary basis.

Apps for Attorneys

The Indiana Law Journal has a very nice annotated list of apps for lawyers.

Fourth Rule Change in a Month: New Judicial Administration Rule 2.514 Governs Computation of Time

Today, the Florida Supreme Court adopted Rule of Judicial Administration 2.514 governing computation of time in all state court proceedings. The computation itself remains essentially the same as it had been under current rules 1.090 and 9.420, but clarifies that the 5 days additional time for mailing also applies to service by email. Oddly, though, this new rule 2.514 goes into effect October 1, 2012, one month AFTER the new email service rule goes into effect.

This is the fourth rule change adopted by the Court over the last month, the prior changes being:

• service by email (effective September 1, 2012);
• electronic filing (October 1 in appellate courts; April 1, 2013 in civil); and
• electronic discovery (September 1, 2012)).

One More Vote for Two Spaces

In Whatch Gonna Do--One Space or Two, Wayne Schiess agrees that the better practice is one space. I think the choice is even clearer than he does. What do you think?

E-service, E-filing, and Now E-discovery--Another Florida Rule Change

In addition to its recent opinion requiring service by email (effective September 1, 2012), the Supreme Court of Florida recently issued two more opinions changing the rules of civil procedure in significant ways.

First, the Court amended the rules to require electronic filing. This rule will take effect on October 1, 2012 in state appellate courts; and on April 1, 2013 in civil, probate, small claims, and family law divisions of the trial courts, as well as appeals to the circuit courts in those cases. The effective date for criminal and traffic cases will be October 1, 2013.

Second, the Court amended the rules to address electronic discovery. This rule will take effect on September 1, 2012.

Let's not rush into this email business...

On Tuesday, June 25, the Florida Supreme Court amended last week’s opinion to change the effective date for mandatory email service from July 1 to September 1, 2012. The rule remains the same in all other respects. In an email announcing the change, the Florida Bar also announced that it would be providing complimentary CLE to all lawyers regarding the change. It did seem that the original effective date was given with extremely short notice. Why? Had the issuance of the opinion been delayed? Does anyone have inside info?

 

July 1 marks beginning of mandatory service by e-mail

In an opinion issued last week, the Florida Supreme Court created Rule of Judicial Administration 2.516 requiring email service of all papers after the initial summons and complaint. New rule 2.515 similarly requires an attorney’s signature block include his or her primary email address, and any secondary email addresses.

The rules take effect July 1, 2012, and apply to all state civil and appellate cases. Note the following specifics:

• Upon appearing in a proceeding, a lawyer must serve a designation of a primary email address (and may designate two secondary addresses) for receiving service.
• If an attorney fails to designate an email address, service may be made on that attorney at the email address on record with the Florida Bar.
• Service by e-mail is deemed complete when the e-mail is sent.
• Service by email is treated as service by mail for purposes of the computation of time.
• E-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. 
• The subject line of the e-mail must contain the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the relevant proceeding. 
• The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. 
• Any document served by email may be signed by the “/s/” format, but the filed original must be signed in accordance with the applicable rule of procedure.
• The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line.

Search opinions from specific courts - Google Scholar Blog

From the Google Scholar Blog: Google Scholar search now can limit searches to specific courts and jurisdictions.
Search opinions from specific courts - Google Scholar Blog