Earlier this month the Florida Supreme Court ordered sweeping changes to that state’s court rules, giving technology-driven virtual hearings and remote depositions a permanent role in the state’s judicial processes.
The decision is further evidence of the widening acceptance of modern communications technology within the legal profession.
The court said, in a July 14 opinion, that the changes are intended to provide “permanent and broader authorization” for the use of communication technology to conduct court proceedings in Florida.
“A general authorization for court proceedings through communication technology now appears in Florida Rule of General Practice and Judicial Administration 2.530 (Communication Technology) and applies unless another rule of procedure or general law governs,” the court wrote.
The rule changes, made at the recommendation of the court’s Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19, make dozens of technology-aware updates to Florida’s court rules on civil procedure, criminal procedure, appellate procedure, probate, traffic, and small claims.
Changes to Florida Remote Deposition Practice
In the area of depositions, the state supreme court updated existing court rules to accommodate technologies that are already firmly entrenched — and accepted — within the legal community, and to authorize the use of communications technology wherever the trial court and parties believe it’s prudent to do so.
A revised Rule 2.530, entitled “Communication Technology,” defines three new terms that are critical to understanding how technology will be used in Florida’s courts. The rules distinguish between technologies that transmit voice communications only and those that transmit both voice and images.
Three key definitions are provided:
- Audio communication technology, defined as “electronic devices, systems, applications, or platforms that permit all participants to hear and speak to all other participants in real time.”
- Audio-video communication technology, defined as “electronic devices, systems, applications, or platforms that permit all participants to hear, see, and speak to all other participants in real time.”
- Communication technology, an umbrella term defined as either “audio communication technology” or “audio-video communication technology.”
These changes are carried out by revised Rule 1.310, which now permits remote depositions (via audio-only or audio-visual technologies) by party stipulation or on the trial court’s own determination to use communications technology.
Rule 1.310(b)(7) now provides in relevant part:
*(7) A deposition may be taken by communication technology … if stipulated by the parties or if ordered by the court on its own motion or on motion of a party.
In addition to the requirements of subdivision (b)(1), a party intending to take a deposition by communication technology must:
(A) state that the deposition is to be taken using communication technology in the title of the notice; and (B) identify the specific form of communication technology to be used and provide instructions for access to the communication technology in the body of the notice.
The supreme court excised Rule 1.310’s several references to the anachronistic term “videotape,” replacing each one with the term “audiovisually recorded.”
The change in terminology from “videotape” to “audiovisual recording” also prompted the supreme court to tweak Rule 1.310(b)(4)(D), which was formerly titled “Custody of Tape.” Revised language in this part of the rule provides that the party requesting the deposition is responsible for safeguarding the recording, and that “access to a copy of the recording” must be provided to any party requesting it (at the requesting party’s expense).
Deposition Notices Will Swell
Lawful deposition notices must now carry quite a bit of new information. As rewritten, notices for depositions using communication technology in Florida must now contain the following:
- the time and place for taking the deposition (Rule 1.310(b)(1))
- the name and address of each person to be examined (Rule 1.310(b)(1))
- the materials to be produced, if requested via subpoena duces tecum (Rule 1.310(b)(1))
- a declaration that the deposition will be conducted via communication technology (Rule 1.310(b)(7)(a))
- a declaration that deposition will be audiovisually recorded, if applicable (Rule 1.310(b)(4)(A)(i))
- the method for audiovisually recording the deposition, if applicable (Rule 1.310(b)(4)(A)(ii))
- the name and address of the operator of the audiovisual recording equipment, if applicable (Rule 1.310(b)(4)(A)(ii))
- the specific form of communication technology to be employed (Rule 1.310(b)(7)(a))
- instructions for accessing the communication technology to be employed (Rule 1.310(b)(7)(a))
It remains to be seen whether they are any limits on a party’s determination to use communications technology for a deposition.
Rule 1.310 does not specify the factors that trial courts should weigh when ruling on objections to a party’s motion for a remote deposition. However, the general rule on the use of communications technology (Rule 2.530) states that courts have discretion to order the use of remote technology in all cases and that “the decision to authorize the use of communication technology over objection shall be in the discretion of the court official.”
General Litigation Matters
The new rules for deposition practice are a small part of a larger set of rule changes adopted by the state supreme court. Other significant rule changes include:
- Prospective jurors may participate in voir dire via audio-video communication technology, if the parties so stipulate and the court approves.
- Jury trials may be conducted via audio-video communication technology, if the parties so stipulate and the court approves.
- Mediations and arbitrations may be conducted via communication technology, if the parties so stipulate and the court approves.
- All court filings must include the signing lawyer’s primary and secondary email addresses.
- Rules governing service of pleadings and other legal documents revised to require broader use of email for service.
- Trial courts must allow motion to use communication technology for a non-evidentiary proceedings scheduled for 30 minutes or less unless the court official determines that good cause exists to deny the motion.
- Trial testimony may be presented through communication technology if the trial court determines that good cause exists to do so.
- The oath may be administered via audio-video communication technology in cases in which the person administering the oath is not physically present with the witness.
The new Florida court rules take effect Oct. 1, 2022.
Similar legal reforms to mandate the wider use of communication technologies in legal proceedings were recently adopted in Minnesota.