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Committee takes a harder look at remote proceedings rule amendment

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remote depositionA rule amendment governing using audio and audio-visual technology in court proceedings has been delayed by the Rules of General Practice and Judicial Administration Committee.

The committee had approved conceptually revisions to Rule 2.530 at its January meeting, but when it came for final approval at its June 11 gathering, members balked at some of the details.

The proposed amendments wound up going back to the committee’s Liaison Subcommittee, which is expected to report again in October.

Sandy Solomon, the chair of the subcommittee and the incoming chair of the committee, said the amendments are aimed at being a general guide for remote testimony and appearances in court cases.

“If you don’t have another rule in another [procedural rule] set that tells you how to do it, this is how it’s done and these are the presumptions on who has to file what and what the standard of review is by the trial judge,” he said.

The revisions provide that for non-evidentiary hearings, remote technology will presumably be allowed in proceedings scheduled for 30 minutes or less, Solomon said. Because they have special considerations or their own standards, that will not apply to appellate, criminal, or juvenile procedural rules.

For evidentiary hearings, those seeking to present remote testimony must move prior to the hearing to be able to use communication technology and show good cause. Factors to be considered include the value of the case, the location of the witness, the value of the testimony, the need to see the demeanor of the witness, and the “potential for unfair surprise.”

The amendments allow for oaths to be administered by authorized persons, either by a person who is physically present with the witness or remotely by a person authorized in the State of Florida.

Solomon said the subcommittee decided against requiring special steps to confirm a remote witness’s identity that would not be required for in-person testimony.

“We’re not really talking about someone needing to confirm their identify to a notary or a judge or a clerk,” said Keith Park, a member of the subcommittee. “The only issue is whether that person [administering the oath] can identify that the witness is the person who took the oath.”

Committee members raised questions about whether the rule should specifically say that a judge must approve a motion to use technology, whether to save judges time in some cases, such as small claims, should be able to order the use of a remote proceeding without a request of the parties, and whether remote proceedings accurately capture everything that might be needed for an appeal.

Committee member Siobhan Shea noted she was in a remote proceeding where an attorney fell asleep, but that wasn’t recorded and hence wasn’t part of the record. She also said attorneys or parties might be temporarily dropped from a digital proceeding, and that also might not be recorded.

Committee member and Seventh Circuit Judge Elizabeth Blackburn said she was concerned because the rule was ambiguous whether it is the moving party or judge’s duty to find good cause for using remote technology.

Committee members also expressed continuing concerns about being able to see who else was near a remotely testifying witness and not visible on the video link.

Committee member Susan Warner said she recently was in a remote proceeding where “the attorney was in the room with the witness and was off camera. I could not see him. It was mostly OK, but at one point it was obvious the witness was looking at the attorney. I do think that is something that needs to be thought through.”

In another instance, she said, she was conducting a deposition of a witness in a car and after a couple hours, someone who had not been visible or identified beforehand moved in the backseat. She said the rule should address that so attorneys know who else is in the room.

In a more chilling example, committee member Kristin Norse said, “There was actually circulating on the internet an instance [on video] in a domestic violence case where the victim was in the room with the perpetrator [who was off camera] and didn’t feel safe to disclose that. The state attorney picked that up and sent an officer to arrest the man.”

After hearing the reservations, Solomon withdrew the proposed rule and said the subcommittee would work to address the concerns.

 

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