The Florida Supreme Court got busy last week! There are amendments coming to the Florida Rules of Civil Procedure. In re Amends. to Fla. Rules of Civ. Proc., ___ So. 3d. ___; No. SC2023-0962, 2024 WL 2341793, at *1 (Fla. May 23, 2024)("shall become effective January 1, 2025"). In some part, these rule changes are part of a larger effort by the Court to address timeliness, see Workgroup Report on Civil Cases (January 2022). There has been a lot of discussion in the last 24 months, and the simple fact is that civil litigation is going to change.
Now, the students of the law are already saying "this is workers' compensation, why do we care?" That is fair. The Florida Supreme Court has clearly conceded that the OJCC is not and has never been a "court," and that it cannot make rules for the OJCC. Those are deep waters, and for today's purposes we will skim over them. That admonition is true. But, the OJCC can and does adopt rules of practice, pursuant to section 440.45.
And some of those incorporate other rules. For example:
Rule 60Q6.114 Discovery "(2)(a) Depositions of witnesses or parties may be taken and used in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure.
Rule 60Q6.114 Discovery "(3) Production and entry on land. Any party may seek production of documents or other tangible things from other parties or non-parties and may seek entry onto land or other property as provided in the Florida Rules of Civil Procedure.
Rule 60Q6.114 Discovery "(4) Responses and objections to depositions, production, or entry shall be made as provided in the Florida Rules of Civil Procedure."
Rule 60Q6.114 Discovery "(5) The judge may enter orders to effectuate discovery, including orders compelling discovery, protective orders, and orders imposing sanctions as provided in the Florida Rules of Civil Procedure for failure to comply with or for using discovery methods not specifically authorized by statute."
Some will readily notice that the 60Q Rules do not cite specific Florida Rules of Civil Procedure by number. Thus, it is arguably process that is being incorporated by these references or reliance on the Civil Rules. One 60Q does not even mention the Civil Rules, but merely says "60Q6.120(6)(6) The summary final order standard provided for in this rule shall be construed and applied in accordance with the Florida summary judgment standard."
Some will readily question the impact of the Supreme Court's recent changes to various Civil Rules.
The correct answer is as clear as the nose on your face. It is "it depends." It depends on the arguments and authorities that parties bring to the assigned judge in a particular case, and it depends on that judge making decisions. That is not a very comforting answer, "it depends," but it is the right answer.
At this point, some might be comforted to be reminded that the Court's changes "shall become effective January 1, 2025." Yes, there is likely nothing to panic about tomorrow.
Rule 1.200 is focused on "a detailed procedure for modifying the deadlines set forth in case management orders." It addresses pretrial conferences, case management conferences, scheduling issues, and deadlines. One might ask, what in the 60Q Rules would be argued to somehow incorporate or reference Rule 1.200 or these various changes?
Rule 1.201 addresses "complex litigation." Some might argue that workers' compensation can certainly become complex. Anyone in doubt should take a look at cases like N. Collier Fire Control & Rescue Dist. v. Harlem, 371 So. 3d 368 (Fla. 1st DCA 2023), reh'g denied (Sept. 26, 2023), review denied, No. SC2023-1486, 2023 WL 9016526 (Fla. Dec. 29, 2023) and Normandy Ins. Co. v. Bouayad, 372 So. 3d 671 (Fla. 1st DCA 2023). There are some complex and challenging issues in Chapter 440.
Nonetheless, one might struggle to see the applicability of Rule 1.201 in workers' compensation. What 60Q Rule would one argue incorporates this Civil Rule or its processes?
The next Rule addressed by the Court is Rule 1.280 "General Provisions Governing Discovery." This rule seems to create a disclosure duty for all parties "in general" to provide supporting documentation and information that it has. Some see this as pre-empting the need for a request, as discussed later in Rule 1.350. That rule is "production of documents and things and entry upon land for inspection." Some might argue that sounds like Rule 60Q6.114 "production and entry." Others might argue that the "as provided in the Florida Rules of Civil Procedure" should be read to also incorporate the new Rule 1.280.
Others might note that Rule 1.280 includes "written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission," and they might also remember that traditionally neither interrogatories or requests for admission have been allowed in workers' compensation. Sure, you might argue about the provenance of that, the authority, or even the history. But, perhaps arguments about 1.280 will consider a variety of thoughts, conclusions, or assertions?
There will be those who see no specter in the Court's changes to the Civil Rules. There will be others who see challenges or implications. But, all should remember that "the Court's changes 'shall become effective January 1, 2025.'"
The Florida Bar has a Rules Advisory Committee. Mr. Taddeo is the Chair. The Workers' Compensation Section of The Florida Bar has a Rules Committee. The Florida Workers' Advocates has a Rules Committee. And, anyone may communicate directly with me if you have suggestions, questions, or proposed rule changes (not about a specific case, keep it general). Unlike the days of the Supreme Court Workers' Compensation Rules, we are not on a fixed schedule for considering change or other rule discussions.
The crux of all this is (1) the Court has made changes to Civil Procedure; (2) some may make arguments that those do or do not impact workers' compensation cases; (3) opinions and conclusions may vary among lawyers (and judges); (4) there are opportunities to express your thoughts and make your arguments; and (5) the Supreme Court's changes are not effective until 2025.