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Committee moves rule on ex parte filings

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Judge Josephine Gagliardi A proposed new rule to govern the filing of ex parte motions has narrowly won initial approval from the Rules of Judicial Administration Committee.

The committee initially deadlocked 15-15 on proposed Rule 2.421, leaving it to Chair Judge Josephine Gagliardi to cast the deciding vote allowing the rule to go forward.

Committee member Sandy Solomon, who chaired the subcommittee that proposed the rule, said it stemmed from a 2018 Florida Supreme Court ruling in Andrews v. State, Case No. SC17-1034. That involved a private pro bono attorney representing an inmate sentenced as a juvenile to life without parole and entitled to a mandatory sentence review under the U.S. Supreme Court ruling in Miller v. Alabama, 567 U.S. 460, 479 (2012).

The attorney wanted to file an ex parte motion to get public funds for investigators and expert witnesses, arguing that doing so publicly could reveal the defense strategy to the prosecution. The First District Court of Appeal held the ex parte motion was improper, but the Supreme Court reversed, noting that paid private counsel and public defenders can routinely hire investigators and experts without revealing any information to the prosecution.

Solomon said the subcommittee’s concern was there was no rule provision — which was cited by the First DCA — to cover those and similar situations in which an ex parte motion might justifiably be kept from opposing parties.

Solomon said it is a question of how does an attorney seal a document that must be presented to the court or filed in the court system’s electronic filing portal when that document, by itself, does not qualify for sealing, confidentiality, work-product, or attorney-client privilege?

He called the proposal a general “enabling rule” designed to let each of the other procedural rule committees “deal with the sealing of the documents and the particular procedures and the duration of that sealing in their own contexts….We’re only providing what Andrews did not have at the DCA level.”

The alternative to a general rule, Solomon said, would be a detailed, complex rule like Rule of Judicial Administration 2.420, perhaps the longest and most complex procedural rule, which governs access to court records and protects confidential information.

Supporters of the proposal said it gives a procedure for such things as protecting trade secrets or an attachment writ to prevent someone from moving assets to avoid a court order or judgment.

Opponents said it is too broad, does not necessarily require a judge to review the filing, could encourage a flood of improper ex parte motions — which could require inordinate judicial time to address — and there was no limit on the time the document would be sealed.

The rule was sent to the RJAC’s drafting subcommittee, and the committee will consider the rule for final approval at its June meeting at the Bar Annual Convention.

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