PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Let’ s Start Talking: New Conferral Requirements for Florida State Motion Practice( Continued)
AVERY S. CHAPMAN
At first, these requirements of Rule 1.202 will likely encounter some adversity in state court. There are already concerns and queries such as“ I don’ t want to tip off my adversary”, and“ Do I have to send my adversary a copy of my proposed motion?” The reality of the matter is that there are very few disputes and motions for a disputed issue in a case that will come as a complete surprise to your adversary. Because of the requisite disclosures and consultation, pre-filing disclosure of an issue for discussion should become the norm and not yield to strategic manipulations.
That being said, the Supreme Court, and Bar Committees providing comments, did anticipate that some motions and issues are either or both so strategic or so unlikely to be amenable to resolution ahead of judicial intervention. In new Rule 1.102( a) and( b), the Court expressly listed motions that are exempt from conferral. A sampling of these include: motions for summary judgment or on the pleadings, to certify or dismiss a class action, to involuntarily dismiss, default, injunctive relief, failure to prosecute, directed verdict, garnishment or judgment enforcement, summary procedure, writ of possession, sanctions, or for which prior notice is exempted under“ statute or rule.” The point of these exemptions is that the Court considered the intervening commentary of the Bar and incorporated common concerns into the list of exemptions, but retained strict conferral requirements for matters related to discovery.
Special Considerations for ESI
Discovery of electronically stored information(“ ESI”) brings its own unique set of concerns and potential issues. These issues include but are not limited to:( i) the timing of hold and preserve demands,( ii) the method of collection and search parameters,( iii) the mode of production,( iv) cost,( v) confidentiality,( vi) inadvertent production, and( vii) claw-back. To those who have litigated issues related to ESI, it is clear and familiar that simpler is often better, and that collegiality and cooperation when developing ESI protocols, is paramount, as well as productive and efficient. See, e. g., The Sedona Principles, 3d ed: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, The Sedona Conference Journal, Vol 19, No. 1( 2018)( Comment 3. g. Communications with opposing counsel and the court regarding ESI should be informed and candid.”).
To consider a present judicial approach to discovery disputes, consider for example Federal Magistrate Judge Bruce Reinhart’ s Standing Discovery Order, at Section III. A, which provides:
If a discovery dispute arises, counsel must actually speak to one another( in person or via telephone) and engage in reasonable compromise in a genuine effort to resolve their discovery disputes before seeking Court intervention.
ESI discovery is sometimes sufficiently cumbersome and expensive without burdening that process further with difficulty communicating with opposing counsel, obstructionist tactics, or tactics designed to increase costs beyond those which would be reasonable on proportionality grounds. Rule 1.202 should go a long way to promoting professionalism and cooperation in Florida state court as has been in place in federal ESI discovery practice for some time.
( Continued on next page)
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TRANSACTIONAL LAW COMMITTEE BLOG
Corporate Transparency Act Update
The Financial Crimes Enforcement Network( FinCEN) has issued an announcement that they have adopted an interim final rule to revise the Corporate Transparency Act regulations so that US chartered entities which had been required under the prior regulations to report beneficial ownership information( BOI) to FinCEN are no longer covered under the new regulations. BOI reporting obligations will now apply only to foreign entities that have registered to conduct business under the laws of a US state or tribal jurisdiction and who otherwise fall within the guidelines requiring a BOI filing. As a result, FinCEN made clear that its new definition,“ reporting companies” and the BOI reporting obligations will not apply to any US entity or US Person, as defined under the Act, and, that the terms“ domestic reporting company” and“ foreign reporting company” have been removed from the regulations. Moreover, the announcement indicated that foreign entities otherwise falling within the reporting company criteria are not required to report BOI of US persons that are its beneficial owners.
Blog authored by DOMINIC S. LIBERI Transactional Law Committee Chair
PBCBA BAR BULLETIN 19