October 2018 brought some important amendments to various Florida Rules of Court. On October 25, 2018, the Supreme Court of Florida issued In Re: Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure, Case SC 17-882. This broad decision affected change in four sets of Florida Court rules.
The focus of this post is on the evolution of technology and the recognition of reality. Our world will inevitably evolve and change around us. We cannot control that, but we may be able to decide how we will perceive that change and make our own adjustments.
Long ago, the Pony Express evolved into the U.S. Postal Service. That was the standard method of transmitting documents. What had taken perhaps weeks for delivery evolved to take days. When the Florida Office of Judges of Compensation Claims promulgated procedural rules, those rules recognized the existing U.S. Mail paradigm (but did not cling to the past reality of the Pony Express delays) and the delays inherent in moving a package of paper around the state by truck from one physical location to the next. The original Rule 60Q6.108(6) said:
(6) When service of any pleading other than a petition is made by mail, 5 days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service.
That five days was to allow the document to make its way to the addressee before the time began to elapse for response or action. Whether mailing across the state or across the street, 5 additional days were afforded. That was in 2004 and electronic document transmission had long existed. Facsimiles were commonplace. Thus, the rule was specific as to "mail." That language remained in the 2006 rule revisions. However, when the rule was amended in 2010, it read:
(6) When service of any pleading other than a petition is made by U.S. mail, five days shall be added after the period allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. When service is made by any electronic delivery method or by hand delivery, no additional time shall be added. (Emphasis added).
The addition of "U.S." distinguishes documents sent in physical form from documents attached to an electronic mail in the form of an image or Portable Document Format (PDF). At the time, there was resistance. Many lawyers pointed out that this made the Rules of Procedure for Workers' Compensation Adjudication ("R.Pro.Work.Comp.Adj."; the "60Q rules") different from various Florida Court Rules. A fair number of lawyers wanted the rule to provide explicitly for that "5 days" even when documents were e-"mail" and delivered instantaneously. This was seen as consistent, as logical as affording 5 additional days when mailing across the street (and purportedly knowing that delivery would not take that long).
At that time (2010), the Florida Rules of Civil Procedure ("Fla.R.Civ.P.") acknowledged the existence of facsimile, but seemed skeptical of its efficacy. Rule 1.080(b), for example, stated that "when service is made by facsimile, a copy shall also be served by any other method permitted by this rule." In other words, embrace the technology and its benefits, but cling simultaneously to the vestiges of the past. The sender had to use U.S. Mail or hand-delivery even after sending by facsimile.
At that time, various Florida Court rules either did not distinguish e-mail from mail generally (just said "mail" as the prior R.Pro.Work.Comp.Adj.), or affirmatively stated that when served by "mail or e-mail" that additional time was afforded. See Rules 1.351(b); 1.510(c) Fla.R.Civ.P. The Florida Rules of Judicial Administrations specifically equated e-mail with U.S. Mail in Rule 2.516(D)(iii): "E-mail service, including e-Service, is treated as service by mail for the computation of time." Thus, the OJCC broke with the pack in 2010 distinguishing e-mail and recognizing its instantaneous delivery.
However, in October 2018, the Supreme Court of Florida noted that "E-mail, unlike postal mail, is now nearly instantaneous and no additional time should be permitted for responses to documents served by e-mail." Certainly, there will be little argument with the "instantaneous," though some may quibble about the modifier "now." What happened recently to make e-mail "now" "instantaneous" in 2018? My email seems as efficient today as it has been for the last 20 years. When was e-mail less than instantaneous? However, in recognition of the "now nearly instantaneous" nature of email, the Court has now amended these rules to remove the distinction previously created for email.
Thus, the Court has evolved regarding email. Gone are the complaints, a la 2010, that the Florida Rules of Civil Procedure are different from the Rules of Procedure for Workers' Compensation Adjudication as regards email and computation of time. I would suggest that perhaps "different" is not always a bad thing, and that "different" may sometimes make us all think. And, thinking, considering, and analyzing are perhaps positive tools for us all?
The critics of 2010 suggested that the best path to uniformity was to amend the 60Q rules to include an illogical and artificial "consistency" that defied logic, that defied recognition of the very nature of e-mail. in 2018, they got their consistency, not from the repeal of that 60Q logic, but from the Florida Court's recognition and adoption of the same logic. Perhaps being different does not make anyone "wrong," but merely affords us all an opportunity to think and grow together?
As technology changes our world, we will be challenged. Those will be personal and professional. It will be critical for us each to be conscious of our inclination to cling to "the way its always been," and to invest our effort in understanding, accepting, and embracing technology. It will not be easy. Perhaps it will not be as rapid as some like and too fast for others. But, in the end, change is coming at us every day. It will require adjustments. Things may not really change (become "instantaneous"), but it may take some of us a little more time to accept and to change to keep up.
My 2019 New Year's prediction? A fair few will finally abandon the facsimile machine this year. The realization will dawn that facsimile machines do nothing that a scanner and email cannot. The redundancy will finally dawn, and efficient people will elect to save the expense of that phone line, the space, and the separate inventory of facsimile supplies (toner or ink). And, there will be those who will wonder aloud "Why did we hold on to that antique so long." The answer is that it was familiar and comforting, and we are all resistant to change. Will you look back in 2028 and finally abandon your fax because "email has become reliable?"
