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Committee studies the electronic filing of exhibits

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Michael J. Korn

Michael J. Korn

With more and more court proceedings, including trials, being conducted online, the Bar’s Rules of Judicial Administration Committee will be looking at how exhibits, which used to be carried to the courtroom, can be submitted electronically.

The RJAC briefly discussed the issue at its January meeting and committee member Tom Hall, liaison to the Florida Courts Technology Commission, updated the FCTC at its February 5 meeting.

In a separate interview, RJAC Chair Michael Korn said the issue is being assigned to a subcommittee and he hopes to have a report ahead of the committee’s next scheduled meeting in June.

Electronic hearings and trials have become much more frequent because of the COVID-19 pandemic.

“We are getting a lot of inquiries about electronic documents as exhibits and being admitted into evidence,” Hall told the FCTC. “Since we have gone electronic, this issue has raised its head a lot and there are multi-facets to this problem right now.”

Judges holding electronic hearings, he said, want exhibits “submitted to them ahead of time, but that’s happening in multiple ways around the state. So, the Rules of Judicial Administration Committee feels like we’ve got to look and come up with some standardized procedures.”

Hall and Clay County Clerk of Court and FCTC member Tara Green said Bar President Dori Foster-Morales has been one of those raising the issue.

Foster-Morales, in an interview, said as a family law practitioner she typically went to hearings and trials with “boxes and boxes” of documents and evidence to be prepared for any testimony from a witness.

“When you ask me to file my exhibits [ahead of time] — this is probably true of most lawyers — you’re going to file everything under the sun because you don’t know if you’ll need it,” she said. “You can’t do one big PDF and drop it all in [one document] because how is the judge going to find anything? For appeal, you need to have a clerk who is remote be able to mark an exhibit you have introduced. How can you do that if it’s all [in the same document] on the same page?”

Also, filing extensive documentation and evidence can be expensive, and some have sensitive information that needs to be kept confidential under current rules and laws, Foster-Morales said. Some evidence, such as videos, can be difficult to file.

Another problem is the portal requires black and white documents, scans, or evidence. But exhibits might be color coded charts or, in cases where abuse is alleged, color photographs of bruises and injuries.

Foster-Morales said she’s had good experiences with online hearings and a trial, but “we need to work on those peripheral things around the case. We’re sort of triaging things as they come up and that’s one of the things we need to work on.”

“The issue is obviously real and has been further brought to everyone’s attention because of COVID,” Korn said. “We are referring this matter to one of our standing subcommittees with instructions to examine the ramifications of how logistically documents are going to be presented.

“At this point, we acknowledge that it’s important and it needs to be examined carefully and comprehensively, and that’s our intention.”

Hall told the FCTC there are other related problems. If exhibits become part of court files, then record retention requirements come into play..

Green, who is also president of Florida Court Clerks & Comptrollers, said the FCCC’s Court Operations Committee has been looking at the issue, including possible limitations on clerks’ case management systems for accepting exhibits electronically that used to be presented in court.

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