In Re: Amendments to Florida Rule of Criminal Procedure 3.220, Florida Rule of Civil Procedure for Involuntary Commitment of Sexually Violent Predators 4.310, and Florida Rule of Juvenile Procedure 8.060 ( 2022 )

Supreme Court of Florida
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No. SC22-312
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IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL
PROCEDURE 3.220, FLORIDA RULE OF CIVIL PROCEDURE
FOR INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT
PREDATORS 4.310, AND FLORIDA RULE OF JUVENILE
PROCEDURE 8.060.
August 25, 2022
PER CURIAM.
This matter is before the Court for consideration of proposed
amendments to Florida Rule of Criminal Procedure 3.220
(Discovery), Florida Rule of Civil Procedure for Involuntary
Commitment of Sexually Violent Predators 4.310 (Depositions Upon
Oral Examination), and Florida Rule of Juvenile Procedure 8.060
(Discovery).1 The proposed amendments, which we adopt with
modifications, preclude the visual recording of adult deponents
unless ordered by a court or agreed to by the parties and the
deponent, require the audiovisual recording of depositions of
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
minors unless otherwise ordered by a court, and prohibit the
photographing of deponents during discovery depositions.
I. BACKGROUND
Following the onset of the COVID-19 pandemic in 2020, the
Court established the Workgroup on the Continuity of Court
Operations and Proceedings During and After COVID-19
(Workgroup) “to develop findings and recommendations on the
continuation of all court operations and proceedings statewide in a
manner that protects health and safety and that addresses each
[phase] of the pandemic.” In re Workgroup on the Continuity of Court
Operations and Proceedings During and After COVID-19, Fla. Admin.
Order No. AOSC20-28 (Apr. 21, 2020).2 During the Workgroup’s
2. The Workgroup was also directed to “[i]dentify whether
certain proceedings, due to efficiencies beneficial to stakeholders,
could continue to be conducted remotely when COVID-19 no longer
presents a significant risk to public health and safety,” and the
Workgroup was authorized to propose the necessary rule
amendments. In re Workgroup on the Continuity of Court Operations
and Proceedings During and After COVID-19, Fla. Admin. Order No.
AOSC20-28 (Apr. 21, 2020); see also In re Workgroup on the
Continuity of Court Operations and Proceedings During and After
COVID-19, Fla. Admin. Order No. AOSC20-110 (Nov. 23, 2020).
Based on the positive outcomes and efficiencies observed during the
pandemic, the Workgroup determined that permanent, broader
authorization for remote proceedings was warranted, and proposed
rule amendments authorizing the remote conduct of certain court
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deliberations, the Florida Sheriff’s Association (FSA) expressed
concern that the audiovisual recording of depositions and the
photographing of deponents in criminal cases could result in
images or videos of certain witnesses, such as crime victims or law
enforcement officers, being shared on social media or the internet
for the purpose of harassment. The FSA believed the current
procedure to protect a witness’s identity during a deposition—i.e.,
moving for a protective order under Florida Rule of Criminal
Procedure 3.220(l) (Protective Orders) on a case-by-case basis—will
be inadequate in the long term as audio-video communication
technology is increasingly used to conduct depositions.
The Workgroup determined that the issues raised by the FSA
required in-depth consideration by subject matter experts. The
proceedings, which we considered in In re Amendments to Florida
Rules of Civil Procedure, Florida Rules of General Practice & Judicial
Administration, Florida Rules of Criminal Procedure, Florida Probate
Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, &
Florida Rules of Appellate Procedure, 47 Fla. L. Weekly S187 (Fla.
July 14, 2022). The Steering Committee on Families and Children
in the Court likewise proposed rule amendments authorizing the
remote conduct of certain delinquency, dependency, and family law
proceedings, which we considered in In re Amendments to Florida
Rules of Juvenile Procedure, Florida Family Law Rules of Procedure,
& Florida Supreme Court Approved Family Law Forms, 47 Fla. L.
Weekly S188 (Fla. July 14, 2022).
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Chief Justice thus tasked the Criminal Court Steering Committee
(Steering Committee) with reviewing the issues identified by the
FSA, and with determining whether any rule amendments were
needed.
The Steering Committee, after conducting a thorough review
and obtaining input from interested parties, found that there is no
compelling need to audiovisually record the deposition of an adult
deponent in criminal and juvenile cases, as discovery depositions in
such cases are generally not introduced as substantive evidence
and are mainly used for impeachment purposes only. It also found
that the audiovisual recording of depositions raises security and
public records concerns for law enforcement deponents, and that
similar concerns exist for adult deponents as well, as an
audiovisually recorded deposition may be shared via social media or
the internet to embarrass or pressure a deponent. But as to
minors, the Steering Committee found that there is still a need to
audiovisually record depositions, as minors are particularly
vulnerable to harassment or intimidation, and the audiovisual
recording of depositions enables the court to control such tactics.
See Fla. R. Crim. P. 3.220 Comm. Note.
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Based on these findings, the Steering Committee proposes
amending rules 3.220, 4.310, and 8.060. The proposed
amendments were not published for comment by either the Steering
Committee or the Court. But in response to a motion from the
Criminal Procedure Rules Committee, the Court issued an order
authorizing all interested parties to file comments on the Steering
Committee’s proposals. Three comments were received, and the
Steering Committee filed a response to the comments.
Having considered the proposed amendments, the comments,
and the Steering Committee’s response, the Court adopts, with
modifications, the amendments proposed by the Steering
Committee. The more significant amendments are discussed below,
along with the changes to the Steering Committee’s proposals.
II. AMENDMENTS
Rules 3.220(h)(1), 4.310(b)(2), and 8.060(d)(2)(C) are amended
to make clear that courts possess broad authority to oversee the
taking of depositions and that they may enter orders necessary to
protect deponents, secure the rights of the parties, and ensure
compliance with statutes.
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Rule 4.310(a) (When Depositions May be Taken) is amended to
clarify that unless the rule provides otherwise, the procedure for
taking a deposition under the rule is the same as that provided in
the Florida Rules of Civil Procedure.
Rule 3.220(h)(4) is retitled “Visual Recording and
Photographs,” and it, along with rule 4.310(b)(3), is amended to: (1)
preclude the visual recording of adult deponents unless ordered by
a court or agreed to by the parties and the deponent; (2) require the
audiovisual recording of depositions of minors unless otherwise
ordered by a court; and (3) prohibit the photographing of deponents
during discovery depositions. We, however, decline to adopt the
Steering Committee’s proposal to amend both rules to require the
stenographic recording of all audiovisually recorded depositions.
Such a requirement is unnecessary, and is inconsistent with the
stenographic recording requirements for audiovisually recorded
depositions in Florida Rule of Civil Procedure 1.310(b)(4)(B)
(Stenographer), which depositions taken under both rules must now
comply with. See Fla. R. Crim. P. 3.220(h)(1).
We also decline to adopt the Steering Committee’s proposal to
amend rule 8.060(d)(9) (Videotaped Depositions), and instead
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amend the rule to increase to 18 the age under which the
depositions of children must be audiovisually recorded on the
demand of any party unless otherwise ordered by the court.
Rule 8.060(d)(1)(B) is amended to clarify that the location
requirements for taking a deposition do not apply to depositions
taken by communication technology. But we decline to likewise
amend rule 3.220(h)(3) (Location of Deposition), as the amendments
proposed by the Steering Committee have already been adopted by
the Court. See In re Amends. to Fla. Rules of Civil Proc., Fla. Rules of
Gen. Pract. & Jud. Admin., Fla. Rules of Crim. Proc., Fla. Prob. Rules,
Fla. Rules of Traffic Crt., Fla. Small Claims Rules, & Fla. Rules of
App. Proc., 47 Fla. L. Weekly S187 (Fla. July 14, 2022).
Lastly, we decline to adopt the Steering Committee’s proposal
to amend rules 3.220(h)(7) (Defendant’s Physical Presence) and
8.060(d)(6) (Physical Presence of Child) to allow a court to consider
“any reasonable alternative” in deciding whether to allow a
defendant or child to be physically present at a deposition. It is not
entirely clear what “reasonable alternative[s]” there are to a party’s
physical presence at a deposition other than his or her appearance
via communication technology, and neither rule precludes a court
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from considering whatever alternatives there might be, as both
rules state only that a “court may consider” the listed criteria in
assessing whether to allow a defendant or child to be physically
present at a deposition.
III. CONCLUSION
Accordingly, the Florida Rules of Criminal Procedure, the
Florida Rules of Civil Procedure for Involuntary Commitment of
Sexually Violent Predators, and the Florida Rules of Juvenile
Procedure are amended as set forth in the appendix to this opinion,
with new language underscored and deletions in struck-through
type. The amendments become effective October 1, 2022, at 12:02
a.m.
We thank the Steering Committee for its hard work and
attention to this matter. We also appreciate the insight provided by
the commenters.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, LAWSON,
COURIEL, and GROSSHANS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
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Original Proceeding – Florida Rules of Criminal Procedure, Florida
Rules of Civil Procedure, and Florida Rules of Juvenile Procedure
Honorable Debra J. Riva, Chair, Criminal Court Steering
Committee, Bradenton, Florida, and Bart Schneider, Staff Liaison,
Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
Stephanie C. Zimmerman, Chair, Juvenile Court Rules Committee,
Bradenton, Florida, Candice Kaye Brower, Past Chair, Juvenile
Court Rules Committee, Gainesville, Florida, Cynthia Cohen, Chair,
Criminal Procedure Rules Committee, West Palm Beach, Florida,
Alan S. Apte, Past Chair, Criminal Procedure Rules Committee,
Orlando, Florida, Joshua E. Doyle, Executive Director, The Florida
Bar, and Mikalla Andies Davis, Staff Liaison, The Florida Bar,
Tallahassee, Florida; Jason Cromey of Cromey Law, P.A., on behalf
of the Florida Association of Criminal Defense Lawyers, Pensacola,
Florida; and Robert Wayne Evans of Allen, Norton & Blue, on behalf
of the Florida Sheriffs Association, Tallahassee, Florida,
Responding with comments
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Appendix
RULE 3.220. DISCOVERY
(a)-(g) [No Change]
(h) Discovery Depositions.
(1) Generally. At any time after the filing of the
charging document, any party may take the deposition upon oral
examination of any person authorized by this rule. A party taking a
deposition shall give reasonable written notice to each other party
and shall make a good faith effort to coordinate the date, time, and
location of the deposition to accommodate the schedules of other
parties and the witness to be deposed. The notice shall state the
time and the location where the deposition is to be taken, the name
of each person to be examined, and a certificate of counsel that a
good faith effort was made to coordinate the deposition schedule.
After notice to the parties the court may, for good cause shown,
extend or shorten the time and may change the location of the
deposition. Except as provided herein,Unless a provision of this rule
conflicts with the Florida Rules of Civil Procedure, the procedure for
taking the deposition, including the scope of the examination, and
the issuance of a subpoena for deposition by an attorney of record
in the action, shall be the same as that provided in the Florida
Rules of Civil Procedure and section 48.031, Florida Statutes. To
protect deponents and the rights of the parties and to ensure
compliance with statutes, the court may enter orders, including but
not limited to the orders allowed by rule 3.220(e) and (l), upon
motion of a party, the deponent, or on its own motion, for good
cause shown. Any deposition taken pursuant to this rule may be
used by any party for the purpose of contradicting or impeaching
the testimony of the deponent as a witness. The trial court or the
clerk of the court may, upon application by a pro se litigant or the
attorney for any party, issue subpoenas for the persons whose
depositions are to be taken. In any case, including multiple
defendants or consolidated cases, no person shall be deposed more
than once except by consent of the parties or by order of the court
issued on good cause shown. A witness who refuses to obey a duly
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served subpoena may be adjudged in contempt of the court from
which the subpoena issued.
(A)-(D) [No Change]
(2)-(3) [No Change]
(4) Depositions of Sensitive WitnessesVisual Recording
and Photographs. Depositions of children under the age of 18 shall
be videotaped unless otherwise ordered by the court. The court may
order the videotaping of a deposition or the taking of a deposition of
a witness with fragile emotional strength, or an intellectual
disability as defined in section 393.063, Florida Statutes, to be in
the presence of the trial judge or a special magistrate.For deponents
18 years of age or older, a discovery deposition must not be visually
recorded unless ordered by the court for good cause shown or upon
the consent of the parties and the deponent. For deponents less
than 18 years of age, a discovery deposition must be audio-visually
recorded unless otherwise ordered by the court. No deponent may
be photographed during a discovery deposition.
(5)-(8) [No Change]
(i)-(o) [No Change]
Committee Notes
[No Change]
Court Commentary
[No Change]
RULE 4.310. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. Any party may take
the testimony of any person, including the respondent, by
deposition upon oral examination after the action is commenced.
The attendance of witnesses may be compelled by subpoena as
provided in Fla. R. Civ. P. 1.410. Unless a provision of this rule
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conflicts with the Florida Rules of Civil Procedure, the procedure for
taking the deposition shall be the same as that provided in the
Florida Rules of Civil Procedure. The deposition of a person in
custody, except the respondent, may be taken only by leave of court
on such terms as the court prescribes.
(b) Notice; Method of Taking; ProductionCourt Orders;
Visual Recording and Photographs at Depositions; Telephonic
Depositions.
(1) A party desiring to take the deposition of any person
upon oral examination shallmust give reasonable notice in writing
to every party to the action. The notice shallmust state the time and
place for taking the deposition and the name and address of each
person to be examined. If a subpoena duces tecum is to be served
on the person to be examined, the designation of the materials to be
produced under the subpoena shallmust be attached to or included
in the notice.
(2) For cause shown, the court may enlarge or shorten
the time for taking the deposition.To protect deponents and the
rights of the parties and to ensure compliance with statutes, the
court may enter orders, including but not limited to the orders
allowed by rule 4.280(c) and rule 4.310(d), upon motion of a party,
the deponent, or on its own motion, for good cause shown.
(3) Any deposition may be recorded by videotape
without leave of the court or stipulation of the parties, provided the
deposition is taken in accordance with this subdivision.For
deponents 18 years of age or older, a discovery deposition must not
be visually recorded unless ordered by the court for good cause
shown or upon the consent of the parties and the deponent. For
deponents less than 18 years of age, a discovery deposition must be
audio-visually recorded unless otherwise ordered by the court. No
deponent may be photographed during a discovery deposition.
(4) On motion, the court may order that the testimony
at a deposition be taken by telephone. The order may prescribe the
manner in which the deposition will be taken. A party may also
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arrange for a stenographic transcription at that party’s own initial
expense.
(A) Notice. A party intending to videotape a
deposition shall state in the notice that the deposition is to be
videotaped and shall give the name and address of the operator.
(B) Stenographer. Videotaped depositions shall
also be recorded stenographically, unless all parties agree
otherwise.
(C) Procedure. At the beginning of the deposition,
the officer before whom it is taken shall, on camera: (i) identify the
style of the action, (ii) state the date, and (iii) swear the witness.
(D) Custody of Tape and Copies. The attorney for
the party requesting the videotaping of the deposition shall take
custody of and be responsible for the safeguarding of the videotape,
shall permit the viewing of it by the opposing party, and, if
requested, shall provide a copy of the videotape at the expense of
the party requesting the copy.
(E) Cost of Videotaped Depositions. The party
requesting the videotaping shall bear the initial cost of videotaping.
(c)-(g) [No Change]
RULE 8.060. DISCOVERY
(a)-(c) [No Change]
(d) Depositions.
(1) Time and Location.
(A) [No Change]
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(B) Unless the deposition will be taken by
communication technology, Ddepositions of witnesses residing:
(i) in the county in which the adjudicatory
hearing is to take place shallmust be taken in the building in which
the adjudicatory hearing is towill be held, another location agreed
on by the parties, or a location designated by the court. Depositions
of witnesses residing; or
(ii) outside the county in which the
adjudicatory hearing is to take place, shallmust take place in a
court reporter’s office in the county and state in which the witness
resides, another location agreed to by the parties, or a location
designated by the court.
(2) Procedure.
(A)-(B) [No Change]
(C) After notice to the parties the court, for good
cause shown, may change the time or location of the deposition.To
protect deponents and the rights of the parties and to ensure
compliance with statutes, the court may enter orders, including but
not limited to the orders allowed by rule 8.060(c), (j), (k), and (l),
upon motion of a party, the deponent, or on its own motion, for
good cause shown.
(D) [No Change]
(E) Except as otherwise provided by this
ruleUnless a provision of this rule conflicts with the Florida Rules of
Civil Procedure, the procedure for taking the deposition, including
the scope of the examination, and the issuance of a subpoena
(except for a subpoena duces tecum) for deposition by an attorney
of record in the action, shall be the same as that provided in the
Florida Rules of Civil Procedure.
(F)-(I) [No Change]
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(3)-(8) [No Change]
(9) Videotaped Depositions. Depositions of children
under the age of 1618 shall be videotaped upon demand of any
party unless otherwise ordered by the court. The court may order
videotaping of a deposition or taking of a deposition of a witness
with fragile emotional strength to be in the presence of the trial
judge or a special magistrate.
(e)-(m) [No Change]
Court Commentary
[No Change]
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