Appendix — Miami Herald Publishing Publishing Publishing Co. v. Burk (Nos. 87-508, 87-507)
Supreme Court brief1987
Ask Donna
What actually matters in this document.
Text
7-507
8Y-o 08. FILED
SY-o 09 SEP 4 1987
8 v4 - 5 1 0 “No. JOSEPH F. SPANIOL, JR.
vy Soe
tt oe ee F
In the Supreme Court of the United States
OCTOBER TERM, 1987
PALM BEACH NEWSPAPERS, INC., and THE MIAMI
HERALD PUBLISHING COMPANY,
Petitioners,
VS.
THE HONORABLE RICHARD BRYAN BURK, LINDA
AURILIO, and THE STATE OF FLORIDA,
Respondenis.
THE MIAMI HERALD PUBLISHING COMPANY and
PALM BEACH NEWSPAPERS. INC.,
Petitioners,
VS.
JOHN W. HAGLER and THE STATE OF FLORIDA,
Respondents.
PALM BEACH NEWSPAPERS, INC. and THE MIAMI
HERALD PUBLISHING COMPANY,
Petitioners,
VS.
THE STATE OF FLORIDA,
Respondent.
JOINT APPENDIX OF PETITIONERS PALM
BEACH NEWSPAPERS, INC. AND THE MIAMI
HERALD PUBLISHING COMPANY
(List of counsel on following page)
E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
GERALD B. Cope, JR.
(Counsel of Record)
LAURA BESVINICK
GREER, HoMER, Cope & BONNER, P.A.
4870 Southeast Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131
(305) 579-0060
RICHARD J. OVELMEN
General Counsel
The Miami Herald Publishing Company
One Herald Plaza
Miami, Florida 33101
Attorneys for The Miami Herald Publishing Company
DoNALpD M. MIpDLEBROOKS
(Counsel of Record )
L. MARTIN REEDER, JR.
THOMAS R. JULIN
STEEL Hector & Davis
4000 Southeast Financial Center
Miami, Florida 33131-2398
(305) 577-2904
TERRENCE B. ADAMSON
PETER C. CANFIELD
Dow, LoHNES & ALBERTSON
Suite 1300
One Ravinia Drive
Atlanta, Georgia 30346
Attorneys for Palm Beach Newspapers. Inc.
TABLE OF CONTENTS
PALM BEACH NEWSPAPERS, INC. v. BURK—
Palm Beach Newspapers, Inc. v. Burk, 504 So.2d
Ir age a a sistemas A2
RT Te te ai ice A21
Palm Beach Newspapers, Inc. v. Burk, 471 So.2d
571 (Fla. 4th DCA 1985) (en banc) ................... A23
UI Cae i RIED oss ns ceincecptcncercenesnrnesencsestess A55
CORO CM BB OD asian nace cecsissencnsensensonss A58
Oe Se EN Rn Te A61
CPCI COIN °F occ cnssncccccssscccenseestoenees A66
MIAMI HERALD PUBLISHING CO. v. HAGLER—
Miami Herald Publishing Company v. Hagler, 506
ae UND Cn BPE scandens Sate scacicesssenectiianes A70
Miami Herald Publishing Company v. Hagler, 471
So.2d 1344 (Fla. 4th DCA 1985) —...000002 A72
Order (September 12, 1963) .-.............cccocnsisescecessesscno-= A74
PALM BEACH NEWSPAPERS, INC. v. STATE—
Palm Beach Newspapers, Inc. v. State, 506 So.2d
NI Cy LE fic orie ps ccaccacneshtcbedcinibiinbiaciaatibeineona A86
State v. Freund, 473 So.2d 274 (Fla. 4th DCA
PIPE stale dec upiaaca races parece cshancincdesaecs ssscernmesuensnitsvssioonl A88
COPE CGRP UIIEY Bey BOD waccccescscesiiceccciccecrscsncponassncenss A91
CONSTITUTIONAL PROVISIONS AND RULES—
United States Constitution, Amendment I .............. A96
United States Constitution, Amendment XIV, Sec-
Ie ao hei seca dpinertsdedaensecdsicicteadad bonnet teettalindce cies A96
Rule 3.220, Florida Rules of Criminal Procedure .... A96
Rule 1.280(c), Florida Rules of Civil Procedure ....A105
Rule 1.310(f) and (g), Florida Rules of Civil Pro-
RERRRR Ra MELO EZ NY Bie ee ERS NO ERT NOT LACE A106
Rule 1.080(d), Florida Rules of Civil Procedure ....A108
Al
PALM BEACH NEWSPAPERS, INC. v. BURK
TABLE OF CONTENTS
Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.
1987)
Order (April 21, 1987)
Palm Beach Newspapers, Inc. v. Burk, 471 So.2d 571 (Fla.
4th DCA 1985) (en banc)
Order (February 28, 1983)
Order (February 11, 1983)
Order (January 18, 1983)
Order (December 8, 1982)
A2
PALM BEACH NEWSPAPERS, INC.; The Miami Herald
Publishing Company; and News and Sun Sentinel
Company, Petitioners,
Vv.
The Honorable Richard Bryan BURK, Linda Aurilio and
State of Florida,
Respondents.
No. 67352.
Supreme Court of Florida.
Feb. 19, 1987.
Rehearing Denied April 21, 1987.
The press sought to be present at pretrial discovery
depositions and to obtain copies of depositions in attempted
murder case. The Circuit Court, Palm Beach County,
Richard B. Burk, J., held that press was nct entitled to
access, and press petitioned for review. The District
Court of Appeal, 471 So.2d 571, affirmed, and certified
questions of great public importance. The Supreme Court
held that the press does not have a qualified right under
the First Amendment, under rules of criminal and civil
procedure, or under the Public Records Law to attend
pretrial discovery depositions in a criminal case or to
obtain copies of unfiled depositions.
Questions answered and decision approved.
Shaw, J., filed opinion concurring in part and dis-
senting in part.
A3
1. Criminal Law (Key) 635
Where defendant’s right to a fair trial conflicts with
the public’s right of access, it is the right of access which
must yield. U.S.C.A. Const.Amends. 1, 5, 6, 14.
2. Criminal Law (Key) 635
While defendant generally may compel a public trial,
there is no similar right to a private trial. U.S.C.A. Const.
Amend. 6.
3. Constitutional Law (Key) 90.1(3)
The press does not have a First Amendment right
to be present at discovery depositions in a criminal pro-
ceeding or to obtain copies of depositions which have
not been filed with the court. U.S.C.A. Const.Amend. 1.
4. Criminal Law (Key) 635
Parties to a criminal proceeding who wish to deny
access of the press to a deposition proceeding are not
required to obtain a protective order.
5. Criminal Law (Key) 635
Records (Key) 32
The press does not have a qualified right under the
rules of criminal and civil procedure to attend deposition
proceedings in criminal cases and to obtain copies of
unfiled depositions. West’s F.S.A. RCP Rule 1.300(c):
West’s F.S.A. RCrP Rule 3.220(d).
6. Records (Key) 54
The press does not have any right under the Public
Records Law to obtain copies of unfiled depositions in
A4
criminal proceedings. West’s F.S.A. §§ 119.01 et seq.,
119.07.
7. Records (Key) 32
Once a transcribed deposition is filed with court pur-
suant to criminal rule, it is open to public inspection.
West’s F.S.A. RCrP Rule 1.400.
Donald M. Middlebrooks, L. Martin Reeder, Jr.,
Thomas R. Julin and Norman Davis of Steel, Hector &
Davis, Parker D. Thomson, Sanford L. Bohrer, Jerold I.
Budney and Gene A. Turk, Jr. of Thomson, Zeder, Bohrer,
Werth, Adorno & Razook, Richard J. Ovelmen, Miami,
and Janice Burton Sharpstein and Laura Besvir'7k of
Sharpstein & Sharpstein, Coconut Grove, and Ray rerrero,
Jr., Wilton L. Strickland and Ricki Tannen of Ferrero,
Middlebrooks, Strickland and Fischer, P.A., Ft. Lauder-
dale, for petitioners.
Robert A. Butterworth, Jr., Atty. Gen., and Louis F.
Hubener and Mark C. Menser, Asst. Attys. Gen., Talla-
hassee, and Richard L. Jorandby, Public Defender, Fif-
teenth Judicial Circuit, and Margaret Good, Asst. Public
Defender, West Palm Beach, for respondents.
George K. Rahdert of Rahdert, Anderson & Richard-
son, St. Petersburg, for amicus curiae, Times Pub. Co.
PER CURIAM.
We review Palm Beach Newspapers, Inc. v. Burk,
471 So.2d 571 (Fla. 4th DCA 1985), wherein over the
objection of both the prosecutor and the accused, peti-
tioners (the press) sought to be present at pretrial dis-
covery depositions and to obtain copies of depositions
AS
which had not been transcribed or filed with the trial
court. The trial judge ruled, essentially, that the taking
of depositions was not a judicial proceeding and there
was no right of access by the public or press until such
depositions were filed with the court. On appeal, the
district court (en banc) held that the press has no con-
stitutional, first amendment, right of access to the taking
of pretrial depositions in a criminal case and the right
of access to depositions did not accrue until they were
filed with the clerk of the court. On its own motion,
the district court certified two questions of great public
importance:
1. IS THE PRESS ENTITLED TO NOTICE AND
THE OPPORTUNITY AND RIGHT TO ATTEND
PRETRIAL DISCOVERY DEPOSITIONS IN A CRIM-
INAL CASE?
2. IS THE PRESS ENTITLED TO ACCESS TO
PRETRIAL DISCOVERY DEPOSITIONS IN A CRIM-
INAL CASE WHICH MAY OR MAY NOT HAVE
BEEN TRANSCRIBED BUT WHICH HAVE NOT
BEEN FILED WITH THE CLERK OF COURT OR
THE JUDGE?
Id. at 579. We have jurisdiction. Art. V, § 3(b) (4), Fla.
Const. We answer both questions in the negative, and
approve the decision of the district court below.
We have reviewed and considered briefs from the
three petitioners, an amicus curiae brief from the Times
Publishing Company in support of petitioners, and answer
briefs from respondents. All together, the briefs and
appendices comprise hundreds of pages. We do not con-
sider it necessary or desirable to address every point
raised in support of the opposing views, but have iden-
tified three critical points worthy of comment:
A6
1. Does the press have a qualified right under
the first amendment to the United States Constitution
to attend pretrial discovery depositions and to obtain
copies of unfiled depositions?
2. Does the press have a qualified right under
Florida rules of discovery to attend pretrial discovery
depositions and to obtain copies of unfiled depositions?
3. Does the press have a qualified right to ob-
tain copies of unfiled depositions under section 119.07,
Florida Statutes (1985)?
Petitioners cite a series of opinions from the United
States Supreme Court and this Court, the rationale of
which, petitioners urge, supports the broad proposition
that under the United States Constitution criminal pre-
trial proceedings are presumptively open to the public.
Consequently, petitioners urge, the press may not be
barred unless there is a showing of an overriding interest
based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that in-
terest. Petitioners acknowledge that none of the cases,
with one exception, dealt with the discovery process but
argue by analogy that access to pretrial discovery is crit-
ical to freedom of the press because an overwhelming
majority of criminal prosecutions are resolved pretrial.
Without such access, petitioners urge, the public will be
denied critical information on the criminal justice system.
In essence, petitioners are asking that public access to
criminal trials be expanded to include the criminal dis-
covery process. For the reasons which follow we decline
to do so. ~
The question of public access to pretrial criminal
proceedings directly implicates a variety of constitutional
ES
AZ7
rights: the due process right to a fair trial under the
fifth and fourteenth amendments; the rights to a speedy
and public trial by an impartial jury in the venue where
the crime was allegedly committed under the sixth amend-
ment; the rights of the public and press under the first
amendment; and the privacy rights of the accused and
other trial participants under the first amendment and
article I, section 23 of the Florida Constitution. It also
implicates the state’s interest in inhibiting disclosure of
sensitive information and the right of the public to a
judicial system which effectively and speedily prosecutes
criminal activities. It is the balance between these rights
which is at issue. The United States Supreme Court
has addressed the relationship between these various con-
stitutional provisions as they apply to specific stages of
criminal proceedings. For our frame of reference, we
now turn to this body of case law.
In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct.
2898, 61 L.Ed.2d 608 (1979), the accused, with the acquies-
cence of the state, persuaded the trial court to deny press
and public access to a pretrial suppression hearing be-
cause the buildup of adverse publicity jeopardized the
defendant’s right to a fair trial. On review, the Court
acknowledged that the sixth amendment permits and pre-
sumes open trials as a norm, but “there exists no persua-
sive evidence that at common law members of the public
had any right to attend pretrial proceedings; indeed, there
is substantial evidence to the contrary.” Id. at 387, 99
S.Ct. at 2909. This was so, the Court reasoned, because
public access to pretrial proceedings may pose a hazard
to the fairness of the trial and, under the sixth amend-
ment, public trials were clearly associated with the pro-
tection of the accused, not with an independent right of
the public to attend trials. The Court declined to decide
A’
whether there was a first and fourteenth amendment
right to attend criminal trials. Instead, the Court as-
sumed, arguendo, that there was such a right and held
that the trial court, under the circumstances of the case,
had properly balanced the right of the accused to a fair
trial against the right of the press and public to have
access to pretrial proceedings.
[1, 2] It is clear from Gannett that where a defen-
dant’s right to a fair trial conflicts with the public’s right
of access, it is the right of access which must yield.
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100
S.Ct. 2814, 65 L.Ed.2d 973 (1980), makes clear, however,
that while a defendant, generally, may compel a public
trial, there is no similar right to a private trial. There,
the accused, with the concurrence of the state, succeeded
in closing the trial itself. The United States Supreme
Court recognized that there was no explicit constitutional
provision that the public had a right to attend trials.
Nevertheless, because of the common law history of public
access to trials and the importance of such access to the
commonwealth, the Court held
that the right to attend criminal trials is implicit in
the guarantees of the First Amendment; without the
freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom
of speech and “of the press could be eviscerated.”
Branzbureg, |v. Hayes], 408 U.S., [665] at 681, 92
S.Ct., [2646] at 2656 [33 L.Ed.2d 626 (1972)].
Id. at 580, 100 S.Ct. at 2829, footnote omitted.
In Press-Enterprise Co. v. Superior Court, 464 U.S.
501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enter-
prise I), the trial court closed six weeks of jury voir
Ag
dire and refused press requests for a transcript of the
jury selection proceedings. The purported reasons for
closure were the right of the defendant to a fair trial
and the right of the prospective jurors to privacy. The
United States Supreme Court noted that jury selection
had been presumptively open to the public in England
and in Colonial America when the Constitution was
adopted. Thus, the Court reasoned, open jury selection
was a component of an open trial which
enhances both the basic fairness of the criminal trial
and the appearance of fairness so essential to public
confidence in the system.
Id. at 508, 104 S.Ct. at 823. The Court held that it was
error to close the proceedings and totally suppress the
transcript because there were no findings that the right
to a fair trial and privacy interest were threatened and
there was a failure to consider alternatives to closure of
the jury selection and suppression of the transcript.
In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81
L.Ed.2d 31 (1984), the trial court closed a pretrial suppres-
sion hearing over the objection of the accused. The United
States Supreme Court reasoned that suppression hearings
often resemble a bench trial and often are as important,
if not more so, than the trial itself. Moreover, because
motions to suppress often challenge the conduct of the
police and prosecutor, the “public in general also has a
strong interest in exposing .. . police misconduct.” Id. at
47, 104 S.Ct. at 2216. Although Waller did not present the
issue of the public’s right of access to suppression hearings,
the Court noted that in Gannett “a majority of the Justices
concluded that the public had a qualified constitutional
right to attend such hearings.” Waller, 467 U.S. at 45, 104
S.Ct. at 2215. Accordingly, the Court held that under the
A10
sixth amendment any closure of suppression hearings over
the objection of the accused must be justified by a showing
under the Press-Enterprise I test of ‘an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.”
Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824.
In Press-Enterprise Co. v. Superior Court, ........ US.
facial , 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise
II), at the request of the accused, the trial court closed a
forty-one day preliminary hearing wherein the state pre-
sented evidence of probable cause. Over the objection of
the state and the press, the trial court also sealed the record
of the hearing. The trial court ruling was upheld by the
California Supreme Court on the grounds there was no
general first amendment right of access to preliminary hear-
ings and that closure of the hearing and sealing of the
record was necessary because of a reasonable likelihood of
substantial prejudice impinging upon the right to a fair
trial. On review, the United States Supreme Court re-
versed, concluding that the first amendment right of access
to criminal trials was applicable to preliminary hearings
as conducted in California. This was so, the court rea-
soned, because open preliminary hearings have been the
near uniform practice in both federal and state courts and
because preliminary hearings on probable cause as con-
ducted in California are essential to the proper functioning
of the criminal justice system. On the latter point, the
Court noted the elaborateness of the California prelim-
inary hearing, its similarities to a trial, the fact that it
was often the final, most important step in a criminal pro-
ceeding, and was often the only opportunity for public ac-
cess to the proceeding.
Petitioners also rely on the decisions of this Court in
Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.
|
All
1982), and State ex rel. Miami Herald Publishing Co. v.
McIntosh, 340 So.2d 904 (Fla.1976). In McIntosh, the
trial court entered a classic prior restraint order prohibit-
ing the publication of any evidence which had not been
presented in open court in the presence of the jury. Re-
lying heavily on Nebraska Press Association v. Stuart, 427
U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), we held
that the order was invalid. In Lewis, relying on Gannett
and Richmond, we held there was no first amendment
right ‘“‘to attend pretrial suppression hearings as distin-
guished from the right to attend a criminal trial.” Lewis,
426 So.2d at 6.1 Nevertheless, because of our concern for
open government and our belief that public access was an
important part of the criminal justice system, we recog-
nized a non-constitutional right of access and established
a three-pronged test to balance the need for public access
to a pretrial suppression hearing against the paramount
right of the accused to a fair trial. Essentially, the test
established a presumption of openness and placed the bur-
den on those seeking closure to show that closure of the
hearing was necessary. Neither Lewis nor McIntosh sug-
gests that discovery depositions should be open to the
public as a component of a criminal trial.
[3] Having established a proper frame of reference,
we now focus on the press’s right of access to discovery
depositions. Our conclusion that the press does not have
a first amendment right to be present at discovery deposi-
tions or to obtain copies of depositions which are not
filed with the court finds support in Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
1. Dicta in the later Waller case indicated a majority of
the members of the court in Gannett had individually expressed
the view that the public had a qualified constitutional right to
attend pretrial suppression hearings. These individual views
appear to have coalesced in Press Enterprise II.
Al2
In Seattle Times, Rhinehart brought a defamation action
against, inter alia, the Seattle Times. The Seattle Times
sought extensive discovery which Rhinehart opposed on
the grounds that the discovery violated first amendment
rights to privacy, freedom of religion, and freedom of as-
sociation. The trial court granted a motion to compel dis-
covery but also issued a protective order prohibiting the
Seattle Times from publishing, disseminating, or using the
information in any way except where necessary to prepare
for and try the case. The order did not apply to informa-
tion which the Seattle Times might gather outside the
discovery process. On review, the United States Supreme
Court upheld the protective order. We appreciate that
Seattle Times, unlike the present case, involved a civil
suit and that it dealt with the validity of a protective order.
Nevertheless, we believe the rationale of Seattle Times is
applicable to criminal prosecutions and to the issue of
access by non-parties to discovery proceedings and is con-
sistent with Gannett, Richmond Newspapers, Press-Enter-
prise I, Waller, and Press-Enterprise II.
We summarize the rationale of Seattle Times as fol-
lows. The discovery rights of parties under modern prac-
tice is very broad. Discovery may be had on any non-
privileged matter which is relevant to the subject matter
of the pending action. It is not limited to evidence which
will be admissible at trial so long as the information sought
is reasonably calculated to lead to the discovery of ad-
missible evidence. There is no distinction drawn between
private information and that to which no privacy interests
attach. Discovery rules permit extensive intrusion into
the affairs of both parties and non-parties and discovery
may be judicially compelled. Liberal discovery produces
information which may be irrelevant to the trial and which,
if publicly released, would be damaging to the reputation
Al3
and privacy of both parties and non-parties. The parties
are granted discovery rights as a matter of legislative or
judicial grace. Non-parties do not possess discovery rights
and cannot compel the disclosure of information. There
is no independent right outside the trial process to the
information sought. Society in general, and the courts
specifically, has a substantial interest in preventing abuse
of judicially compelled discovery. Deposition proceedings
are not public components of a trial unless made so by the
parties. Such proceedings were not open to the public
at common law and, as a matter of modern practice, are
normally conducted in private. Thus, restrictions on dis-
covered information which has not been admitted at trial
are not restrictions on a traditionally public source of
information.
In our view, Seattle Times furnishes guidance ap-
plicable to the case at hand. Properly read, the defendant
Seattle Times should be regarded as wearing two hats. In
its role as defendant, it was entitled to the liberal discovery
right of a party. However, “[l]iberal discovery is provided
for the sole purpose of assisting in the preparation and
trial, or the settlement, of litigated disputes.” 467 U.S. at
34, 104 S.Ct. at 2208. In its role as a newspaper, the Seattle
Times was treated as a non-party to the suit and had no
independent constitutional right to have access to the
discovery process or to use the information which it dis-
covered in its role as a party. Essentially, the protective
order denied Seattle Times, in its role as a newspaper,
access to the discovery process.
[4] Petitioners cite Seattle Times for the proposition
that parties who wish to deny access to a deposition pro-
ceeding should be required to obtain a provective order.
We disagree. Because the Seattle Times was treated as
both a party and a non-party and thus had access to in-
Al4
formation which it discovered as a party, it was necessary
for the trial court to issue a protective order. Absent its
party status Seattle Times was accorded no independent
first amendment right to the discovery process or to dis-
covered information. Given this holding, we do not see
how it can be plausibly argued that the press has a first
amendment right to be present at deposition proceedings
or to obtain access to such depositions prior to their being
introduced at trial or become the subject of a suppression
hearing. The “right to speak and publish does not carry
with it the unrestrained right to gather information.”
Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d
179 (1965).
Based on our analysis of the above cases, we are satis-
fied that there is no affirmative constitutional right on the
part of the press to attend deposition proceedings or to
have access to depositions prior to their being filed with
the court. Petitioners urge, however, that we adopt a more
expansive view of the first amendment than is suggested
by the case law. We decline. The rationale of Seattle
Times suggests that public access to discovery information
at the moment it is first discovered presents unacceptable
hazards to other constitutional rights because of uncer-
tainty as to the nature and content of the information. The
purpose of depositions is to develop evidence by discover-
ing what potential witnesses may know about the subject
of the trial. It is not possible beforehand to know with
any degree of certainty what information will be discov-
ered. In this respect, a deposition proceeding is unlike a
pretrial suppression hearing or a preliminary hearing on
probable cause where the parties and the court know be-
forehand what will be discussed. Thus, it is not feasible
for a potential witness, for example, to seek a protective
order in advance of the deposition and it is too late to do
Al5
so if the information becomes public knowledge. The often
irrelevant and inadmissible evidence discovered during a
deposition has the substantial potential of hazarding the
right to a fair trial, the privacy rights of both parties and
non-parties, and the right to a trial in the venue of the
alleged crime. Aside from the impracticability of seeking
protective orders beforehand, seeking such orders “would
necessitate burdensome evidentiary findings and could lead
to time-consuming interlocutory appeals.” Seattle Times,
467 U.S. at 36, n. 23, 104 S.Ct. at 2209 n. 23. The effect
such a procedure would have on the speedy trial rights of
the accused and public is obvious. Moreover, it would not
serve the purpose of criminal discovery—assisting in the
trial or resolution of criminal charges—and would carry
us even farther from the central aim of a criminal trial—
trying the accused fairly. We hold there is no first amend-
ment right of public access to criminal deposition proceed-
ings or to unfiled depositions in criminal prosecutions.
[5] Petitioners further urge that, notwithstanding
the success or failure of their constitutional argument,
they have a qualified right under Florida criminal and
civil rules of procedure to attend discovery depositions
and to obtain copies of unfiled depositions. Largely for
the same reasons as set forth above, we do not agree that
the press has a qualified right under the rules of procedure
to attend deposition proceedings.
We note that discovery depositions were not permitted
until authorized by the rules of criminal procedure. The
procedure for taking such depositions is largely controlled
by the Florida Rules of Civil Procedure. See Fla.R.Crim.P.
3.220(d). The deposition need not be taken before a court
reporter or anyone who may be called an officer of the
court: “If the parties so stipulate in writing, depositions
may be taken before any person at any time or place
ESSE
Al6
upon any notice and in any manner... .” Fla.R.Civ.P.
1.300(c). There is nothing in the rules that requires
the parties to have a deposition transcribed or to pre-
vent them from agreeing that the person reporting the
deposition destroy his or her notes. A deposition is noth-
ing more than a statement of a witness taken under oath
in accordance with the rules. As the Seattle Times Court
said, “[l]iberal discovery is provided for the sole purpose
of assisting in the preparation and trial, or the settlement,
of litigated disputes.” 467 U.S. at 34, 104 S.Ct. at 2208.
Open access would not serve this purpose. The discovery
rules are aimed at protecting the rights of the parties in-
volved in the judicial proceeding and of non-parties who
are brought into the proceedings because of purported
knowledge of the subject matter. Transforming the dis-
covery rules into a major vehicle for obtaining information -
to be published by the press even though the information
might be inadmissible, irrelevant, defamatory or preju-
dicial would subvert the purpose of discovery and result
in the tail wagging the dog.
[6, 7] Finally, petitioners suggest that our commit-
ment to opening the judicial process as enunciated in
Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.
1982), coupled with a “mere reference” to Florida’s Pub-
lic Record’s Law, Chapter 119 Florida Statutes (1983),
mandates press access to unfiled depositions. We dis-
agree with this contention. As previously discussed we
found in Lewis that there was no constitutional right of
press access to pretrial suppression hearings. Our com-
mitment to opening the judicial process to such hearings
was predicated on the fact that suppression hearings
were judicial proceedings and we, therefore, provided a
method for press participation because the public has
“a right to know what occurs in the courts.” 426 So.2d
Al7
at 6-7. Discovery depositions are judicially compelled
for the purpose of allowing parties to investigate and
prepare their case, but, unlike a suppression hearing,
they are not judicial proceedings “for the simple reason
that there is no judge present, and no rulings nor adju-
dications of any sort are made by any judicial authority.”
Tallahassee Democrat, Inc. v. Willis, 370 So.2d 867, 872
n. 4 (Fla. lst DCA 1979). We agree with the holding
in Willis that once a transcribed deposition is filed with
the court pursuant to Rule 1.400 Fla.R.Civ.P., it is open
to public inspection. Id. at 870-871. See also Ocala Star
Banner Corp. v. Sturgis, 388 So.2d 1367 (Fla. 5th DCA
1980).
We find nothing in chapter 119 which would point
toward the blanket access to unfiled depositions advo-
cated by petitioners. We find that neither chapter 119
nor our commitment to an open judicial process can be
applied to unfiled depositions. In addition to the com-
pelling reasons which militated against a constitutional
right of access, providing such access would severely
undermine our adversarial system. As was aptly stated
by the district court below, “a lawyer would be remiss
in not making pretrial inquiry of witnesses where he has
reason to think that they may have knowledge of some
kind concerning the alleged crime.” 471 So.2d at 578.
Because counsel should be unfettered to explore all mat-
ters and depose all witnesses which may be of use in
2. If, in fact, chapter 119’s provisions were intended to
encompass all unfiled depositions, serious separation of powers
concerns would be raised. Satz v. Blankenship, 407 So.2d 396
(Fla. 4th DCA 1981), review denied, 413 So.2d 877 (Fla.1982),
recognized that, under section 119.011(3)(c) (5), once documents
are required to be given to an arrested person, the disclosed doc-
uments become “public in a sense.” 497 So.2d at 398. We find
this to be a narrow and specific situation which is in accord
with the analysis employed in Willis.
Al18
his case, the process by which such information is gath-
ered must be as free from chilling influences as possible.
Providing access to unfiled depositions under the guise
of chapter 119 or our commitment to opening the judicial
process would not only present serious constitutional con-
cerns for both the accused and innocent third parties, it
would also undermine effective advocacy, as counsel may
be inhibited from asking certain questions fearing that
damaging or prejudicial information may be published
before trial.
Accordingly, we answer the certified questions in
the negative and approve the decision of the district
court below.
It is so ordered.
McDONALD, C.J., OVERTON and EHRLICH, JJ.,
and ADKINS, J., (Ret.), concur.
SHAW J., concurs in part and dissents in part with
an opinion.
SHAW, Justice, concurring in part and dissenting in
part.
I agree almost entirely with the majority opinion.
However, for the following reasons, I would hold that
reporter notes or unfiled transcriptions of depositions
which are available to the accused in a criminal prosecu-
tion are public records which are presumptively avail-
able for examination or copying under section 119.07(1)
(b), Florida Statutes (1985). First, chapter 119 estab-
lishes “[i]t is the policy of this state that all state, county,
and municipal records shall at all times be open for a
personal inspection by any person.” § 119.01(1). Sec-
ond, section 119.011(3)(c)(5) specifically provides, with
Al9
exceptions not pertinent here, that documents held by _ .
the prosecution which are given, or required by law to
be given, to the accused will not be exempted from the
definition of public records which are subject to exam-
ination by any person.* Third, after the deposition is
taken, the parties and non-party deponents are aware
of the contents of the deposition and are in a position
to show cause, if any exists, why a protective order should
be issued. Fourth, the trial of the case need not be de-
layed while the court considers whether to issue a pro-
tective order. Fifth, the evidentiary hearing on the
protective order should be relatively simple. The balance
to be struck is between the rights to a fair trial and
privacy, on the one hand, and the statutory right of
access to the public record, on the other hand. Sixth,
the parties agree that depositions which are filed with
the court become a public record subject to public access;
Florida Rule of Civil Procedure 1.400; Tallahassee Dem-
ocrat, Inc. v. Willis, 370 So.2d 867 (Fla. Ist DCA 1979).
Because Florida Rule of Civil Procedure 1.310(f) does
not require that all depositions be transcribed or filed,
the district court held that no right of access accrues
until there is a filing. For the purposes of defining
public records and permitting public access, I agree with
Chief Judge Anstead’s dissenting comment below that
public access should not turn on whether a deposition
is transcribed or filed. Once protection against the inva-
sion of the right to a fair trial and privacy are in place.
IT see no reason why the court reporter’s notes or the
unfiled transcription should not be treated as a public
*Florida Rule of Criminal Procedure 3.220 requires that the
prosecutor furnish the accused with the names and addresses of
all persons known to the prosecutor who have relevant informa-
tion and with any statements made by those persons.
A20
record, provided the information has been furnished, or
should have been furnished, to the defendant pursuant
to rule 3.220. Finally, public access to unfiled or un-
transcribed depositions as outlined above would be sup-
portive of our policy announced in Miami Herald Pub-
lishing Co. v. Lewis, 426 So.2d 1 (Fla.1982), of opening
the judicial process to the public to the maximum degree
consistent with decorum and the constitutional rights of
the participants.
A21
IN THE SUPREME COURT OF FLORIDA
TUESDAY, APRIL 21, 1987
CASE NO. 67,352
District Court of Appeal,
4th District - No. 83-422
PALM BEACH NEWSPAPERS, INC.; THE MIAMI HER-
ALD PUBLISHING COMPANY; and NEWS AND SUN
SENTINEL COMPANY,
Petitioners,
vs.
THE HONORABLE RICHARD BRYAN BURK, LINDA
AURILIO and STATE OF FLORIDA,
Respondents.
The motion requesting the full Court to consider peti-
tioner’s motion for rehearing filed by Palm Beach News-
papers, Inc. is hereby denied.
McDONALD, CJ., OVERTON, EHRLICH, SHAW,
GRIMES and KOGAN, JJ., Concur
The motion requesting the full Court to consider
petitioner’s motion for rehearing, or in the alternative,
for clarification filed by the Miami Herald Publishing
Company is hereby denied.
McDONALD, CJ., OVERTON, EHRLICH. SHAW.
GRIMES and KOGAN, JJ., Concur
The motion for rehearing filed by Palm Beach News-
papers Inc. is hereby denied.
bel
A22
McDONALD, C.J.. OVERTON, EHRLICH, SHAW, JJ.,
and ADKINS, J. (Ret.), Concur
The motion for rehearing or, in the alternative, for
clarification filed by The Miami Herald Publishing Com-
pany is hereby denied.
McDONALD, C.J., OVERTON, EHRLICH, SHAW, JJ.,
and ADKINS, J. (Ret.), Concur
A23
PALM BEACH NEWSPAPERS, INC., and Miami Herald
Publishing Company, et al., Petitioners,
V.
The Honorable Richard Bryan BURK, Linda Aurilio and
State of Florida,
Respondents.
No. 83-422.
District Court of Appeal of Florida,
Fourth District.
June 11, 1985.
The press sought access to pretrial discovery deposi-
tions in attempted murder case. The Circuit Court, Palm
Beach County, Richard B. Burk, J., held that the press
was not entitled to access, and the press filed petition
for review. The District Court of Appeal held that:
(1) the press was not entitled to notice and opportunity
to attend pretrial discovery depositions in criminal case,
and (2) the press was not entitled to access to pretrial
discovery depositions taken but not filed with the clerk
of court.
Affirmed.
Letts, J., concurred specially and filed opinion.
Anstead, C.J., dissented and filed opinion in which
Hurley and Barkett, JJ., joined.
Hurley, J., dissented and filed opinion in which Glick-
stein and Barkett, JJ., joined.
Glickstein, J., dissented and filed opinion in which
Hurley, J., joined.
A24
1. Criminal Law (Key) 635
Press was not entitled to notice and opportunity to
attend pretrial discovery depositions in criminal case;
declining to follow Short v. Gaylord, 462 So.2d 591.
2. Records (Key) 32
Press was not entitled to access to pretrial discovery
depositions in criminal case which had been taken but —
not filed with clerk of court; declining to follow Short
v. Gaylord, 462 So.2d 591.
3. Records (Key) 32
Press has right to have access to filed depositions
in criminal case and to the trial plus pretrial and post-
trial proceedings conducted by or before the judge.
4. Records (Key) 32
In absence of court order sealing the deposition, or
some provision of law requiring the same to remain con- —
fidential, the press may not be excluded from reading,
copying and reporting the contents of a deposition that
has been filed with clerk of court. West’s F.S.A. RCP
Rule 1.400.
5. Records (Key) 32
Right of access of press to discovery depositions in
criminal case does not accrue until there is a filing with
clerk of court. West’s F.S.A. RCP Rule 1.400.
6. Records (Key) 32
Nonfiled depositions in criminal case are not court
records available to the press. West’s F.S.A. R.Jud.Admin.
Rule 2.075 (a) (1).
A25
7. Records (Key) 32
Test governing closure in criminal trials is not appli-
cable to pretrial discovery proceedings such as discovery
depositions.
8. Criminal Law (Key) 627.2
Discovery depositions are not subject to admission
into evidence.
9. Criminal Law (Key) 627.2
Depositions taken to perpetuate testimony, which are
different from discovery depositions, are admissible.
West’s F.S.A. RCrP Rule 3.190(j).
10. Criminal Law (Key) 635
Right of access for the press is no greater than that
of the general public.
11. Criminal Law (Key) 635
Application of rule of civil procedure providing for
protective order so that discovery may be conducted with
no one present except persons designated by court [ West’s
F.S.A. RCP Rule 1.280(c)(5)] is limited to instances
where parties do not agree and there is controversy be-
tween them as to whom may be present.
12. Courts (Key) 97(1)
Federal and state rules of procedure were not so
similar that federal decisions as to federal rules were
necessarily binding on state courts as to whether the
SS
A26
press was entitled to access to pretrial discovery deposi-
tions in criminal case.
Talbot D’Alemberte and L. Martin Reeder, Jr., of
Steel, Hector, Davis, Burns & Middleton, Palm Beach,
for petitioner/Palm Beach Newspapers, Inc.
Richard J. Ovelmen, Miami, for petitioner/Miami
Herald Pub. Co.
Jim Smith, Atty. Gen., Tallahassee, and Robert L.
Bogen, Asst. Atty. Gen., West Palm Beach, for respondent/
Richard Bryan Burk.
Richard L. Jorandby, Public Defender, and Margaret
Good, Asst. Public Defender, West Palm Beach, for re-
spondent/Linda Aurilio.
UPON PETITION FOR REVIEW EN BANC
Palm Beach Newspapers, joined by other newspapers
(all referred to as the Press), are here under the provis-
ions of Florida Rule of Appellate Procedure 9.100.
There was pending an attempted murder case in West
Palm Beach entitled State of Florida v. Linda J. Aurilio,
Case No. 82-5858-CF-T. Being interested, the Press sought
access, as hereinafter particularized, to pretrial discovery
depositions in this criminal case. The effort was unsuc-
cessful. The respondent trial judge basically ruled that
such depositions are not judicial proceedings, and that
such depositions are not court records until such time as
they are transcribed and filed with the Clerk. The Press,
being thereby disaccommodated, filed this proceeding.
[1-3] The questions to be resolved, as we understand
them, are (1) Is the Press entitled to notice and an op-
portunity to attend pretrial discovery depositions in a
A27
criminal case? and (2) Is the Press entitled to access to
pretrial discovery depositions taken but not filed with the
Clerk??
Upon consideration of the excellent advice of counsel,
we answer the questions i: the negative. We approve and
affirm the order under review.
To more exactly reflect the position and demands of
the Press, we quote from the Press’ Petition:
Respondent’s ruling that the petitioner may not attend
depositions in this case should be reversed and the
case should be remanded to determine whether closure
of any particular deposition is appropriate under the
three-part test of Lewis. The trial court must con-
sider the facts which relate to a particular deposition
before ordering that particular deposition closed.
This Court also should direct the trial court-to require
the release or filing of any existing deposition tran-
scripts and any deposition transcripts ordered in the
future by the parties or the petitioner unless a motion
to seal the transcripts is filed, and evidence produced
at a hearing shows a compelling need to seal.
Finally, the lower court should be directed to require
the filing of all original notices of taking depositions
in accordance with the rules of civil and criminal pro-
cedure. If a party believes that public or press access
to any future depositions will infringe on the fair trial
1. So that there may be no misunderstanding, we acknowl-
edge the right of the Press to have access to the following:
A. Filed depositions because they then become part of the
official court records. Tallahassee Democrat, Inc. v. Willis,
370 So.2d 867 (Fla. lst DCA 1979)
B. The trial plus pretrial and posttrial proceedings con-
ducted by or before the judge. Gannett Co., Inc. v. DePas-
quale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).
8 a Tee
A28
rights of the accused or will unreasonably endanger
the defendant or a witness or any other person, that
party should file an appropriate motion seeking to
restrict access and notice the media of the hearing
thereon. At the hearing, the movant must be required
to present evidence sufficient to overcome his burden
of meeting each prong of the three-part test established
in Miami Herald v. Lewis [426 So.2d 1 (Fla.1982) ] and
Miami Herald v. State [363 So.2d 603 (Fla.App.1978) }.
The Press tells us that, “No Florida appellate court
has addressed directly the issue here presented: whether
depositions taken in the course of a criminal proceedings
are pretrial judicial proceedings to which the right of
access applies.” We are then referred to a number of
cases that, according to the Press, support their position
by inference, deduction, or otherwise. Having reviewed
such cases, we are not persuaded and see no gain to be
accomplished bv engaging in a disputation on a case by
case basis. Perhaps the largest distinction to be found
is that many of the cited cases deal with access to trial
or proceedings actually conducted before the court (judge)
in the courthouse while here the judge is not present at
the taking of the depositions, which events may take place
outside the courthouse. We found not a single case, statute
or rule that we think precedentially commands the result
contended for by the Press.* The survey, though educa-
2. Following the preparation of this opinion, the case of
Short v. Gaylord, 462 So.2d 591 (Fla. 2d DCA 1985) came to our
attention. There, a trial court ruling which refused to exclude
the press from attendance at pretrial discovery depositions in a
criminal case was reviewed via certiorari proceedings. The Second
District Court of Appeal held that such ruling was not a departure
from the essential requirements of the law and it, therefore,
denied certiorari. Accepting that the Short case and some of
its pronouncements may conflict with our instant opinion, we do
respectfully decline to accept or follow the precedent of the Short
case.
A29
tional, did indeed reveal the success of the press generally
in gaining access to procedings theretofore thought private
or subject to court discretion.
We support our decision that the Press has no consti-
tutional right to access to pretrial depositions in a criminal
case, as defined in the questions before us, by referring to
the following cases:
GANNETT CO., INC. v. DDPASQUALE
443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)
While this case is not on point in that it deals primarily
with press access to a pretrial hearing (before the judge
in court) on a motion to suppress allegedly involuntary
confessions and physical evidence in a criminal case, we
think portion of the concurring opinion of Chief Justice
Burger are illuminating:
Even though the draftsmen of the Constitution could
not anticipate the 20th-century pretrial proceedings
to suppress evidence, pretrial proceedings were not
wholly unknown in that day. Written interrogatories
were used pretrial in i8th-century litigation, especially
in admiralty cases. Thus, it is safe to assume that
those lawyers who drafted the Sixth Amendment were
not unaware that some testimony was likely to be re-
corded before trials took place. Yet, no one ever sug-
gested that there was any “right” of the public to be
present at such pretrial proceedings as were available
in that time; until the trial it could not be known
whether and to what extent the pretrial evidence
would be offered or received.
Similarly, during the last 40 years in which the pre-
trial processes have been enormously expanded, it
A30
has never occurred to anyone, so far as I am aware,
that a pretrial deposition or pretrial interrogatories
were other than wholly private to the litigants. A
pretrial deposition does not become part of a “trial”
until and unless the contents of the deposition are
offered in evidence. Pretrial depositions are not un-
common to take the testimony of a witness, either for
the defense or for the prosecution. In the entire pre-
trial period, there is no certainty that a trial will take
place. Something in the neighborhood of 85 percent
of all criminal charges are resolved by guilty pleas,
frequently after pretrial depositions have been taken
or motions to suppress evidence have been ruled upon.
For me, the essence of all of this is that by definition
“pretrial proceedings” are exactly that.
Gannett, 443 U.S. at 396, 99 S.Ct. at 2914, 61 L.Ed.2d at 631.
TALLAHASSEE DEMOCRAT, INC. v. WILLIS
370 So.2d 867 (Fla. lst DCA 1979)
[4-6] This case deals with Press access to written
depositions filed with the Clerk. It held, among other
things, “In sum, we conclude that the rules of procedure
contemplate that upon filing, unless otherwise ordered by
the court, a deposition becomes a part of the ‘court file’
(Rule 1.400, Florida Rule of Civil Procedure). According
to this view, in the absence of a court order sealing the
deposition, or some provision of law requiring the same to
remain confidential, the Press may not be excluded from
reading, copying and reporting the contents of a deposi-
tion.” Tallahassee, 370 So.2d 870-871. We agree with
this holding. See also Ocala Star Banner Corp. v. Sturgis,
388 So.2d 1367 (Fla. 5th DCA 1980). We note that the
trigger device is the act of “filing.” Thus, conversely, we
A3l
hold that no right of access accrues until there is a “filing.”
As all know, our rules of procedure do not blanket man-
date the filing of depositions and other discovery docu-
ments. See Fla.R.Civ.P. 1.310(f) 3, 1.340, and 1.350. More-
over, Florida Rule of Judicial Administration 2.075 (a) (1)
defines court records as ‘“‘the contents of the court file,
depositions filed with the clerk. .. .” Thus, non-filed
depositions are not court records available to the Press.
Also, we know of no requirement for counsel to require
transcription and to file a discovery deposition or state-
ment when, for example, it was non-productive, hurtful to
his cause, or where it will be of no use to him at trial.
Finally, we note with approval this statement and
footnote because it partially capsulates a basis for our
holding:
Petitioners argue with great insistence the applicabil-
ity of the notice and hearing procedures set forth
in State ex rel. Miami Herald Publishing Co. v. MclIn-
tosh [340 So.2d 904 (Fla.1977)], supra. However,
we perceive a distinction between press rights of
access to court hearings or trials, and access to por-
tions of the court file or records which may or may
not be subject to public and press inspection, i.e.,
specifically, depositions.*
4. We agree with respondent’s observation (response
by letter dated April 16, 1979) that depositions are “tools
of discovery and preserving evidence’, but we would add
further qualifications and observations. A deposition does
not become evidence in a case unless and until admitted by
ruling of the court at a trial or hearing; that depositions very
often contain matters that are not and can never be consid-
ered as evidence, since the scope of inquiry on depositions is
not limited as in examination of a witness in a judicia] pro-
ceeding; that persons not even parties to the case are often
compelled under process of law to divulge information that
is not intended for use as evidence, but merely to elicit or
A32
lead to information that might explain other evidence or
become admissible as evidence; and the taking of a deposi-
tion itself can hardly be categorized as a “judicial proceed-
ing’ for the simple reason that there is no judge present
and no rulings nor adjudications of any sort are made by
any judicial authority. Further, in criminal cases, discovery
depositions taken under Rule 3.220(d), Fla.R.Cr.P. may be
used only ‘for the purpose of contradicting or impeaching
testimony of the deponent as a witness’; and deposition
testimony may be used as evidence at the trial only if taken
to perpetuate testimony under Rule 3.190(j) requiring a
court order, notice to defendant, and, if defendant is in cus-
tody, his presence at the deposition, and a showing that at-
tendance of the witness cannot be procurred at the trial.
State v. Basiliere, 353 So.2d 820 (Fla.1978).
Tallahassee, 370 So.2d at 871-72.
UNITED STATES v. GURNEY
558 F.2d 1202 (5th Cir.1977), rehearing denied 562 F.2d
1257 (5th Cir.1977), cert. denied, 435 U.S. 968, 98
S.Ct. 1606, 56 L.Ed.2d 59 (1978)
This was a criminal case, courthouse trial, which is
a step closer than our case where the trial has yet to
commence and where the proceedings were not conducted
at the courthouse. In Gurney, the trial judge denied the
Press access at trial to (1) the exhibits proffered but
not yet admitted into evidence; (2) transcripts of bench
conferences held in camera where exhibits and testimony
were proffered; (3) written communication between the
jury and judge; and (4) Gurney’s grand jury testimony
which had not been read to the jury. It also appears
that the trial court failed to conduct a hearing on Press
requests but merely entered oral orders denying access,
which orders were subsequently confirmed in writing
with reasons. These rulings and actions were affirmed
by the United States Court of Appeals, Fifth Circuit, and
certiorari was denied by the Supreme Court.
A33
SEATTLE TIMES CO. v. RHINEHART
el te U.S. ........, 104 S.Ct. 2199, 81
L.Ed.2d 17 (1984)
While this is a civil case which approved limitation
upon use of pretrial discovery, we think some of its pro-
nouncements are inferentially significant:
As in all civil litigation, petitioners gained the infor-
mation they wish to disseminate only by virtue of
the trial court’s discovery processes. As the rules
authorizing discovery were adopted by the state leg-
islature, the processes thereunder are a matter of
legislative grace. A litigant has no First Amendment
right of access to information made available only
for purposes of trying his suit. Zemel v. Rusk, 381
U.S. 1, 16-17, 85 S.Ct. 1271, 1280-1281, 14 L.Ed.2d 179
(1965) (“The right to speak and publish does not
carry with it the unrestrained right to gather infor-
mation.”) Thus, continued court control over, the
discovered information does not raise the same spectre
of government censorship that such control might
suggest in other situations. See In re Halkin, 598
F.2d, at 206-207 (Wilkey, J. dissenting).
Moreover, pretrial depositions and interrogatories
are not public components of a civil trial. Such
proceedings were not open to the public at common
law, Gannett Co. v. DePasquale, 443 U.S. 368, 389,
99 S.Ct. 2898, 2910, 61 L.Ed.2d 608 (1979), and, in
general, they are conducted in private as a matter
of modern practice. See id., at 396, 99 S.Ct., at 2913-
2914 (BURGER, C.J., concurring); Marcus, Myth and
Reality in Protective Order Litigation, 69 Cornell
L.Rev. 1 (1983). Much of the information that sur-
A34
faces during pre-trial discovery may be unrelated or
only tangentially related, to the underlying cause of
action. Therefore, restraints placed on discovered,
but not yet admitted, information are not a restric-
tion on a traditionally public source of information.
Finally, it is significant to note that an order
prohibiting dissemination of discovered information
before trial is not the kind of classic prior restraint
that requires exacting First Amendment scrutiny.
See Gannett Co. v. DePasquale, 443 U.S., at 399, 99
S.Ct., at 2915 (POWELL, J. concurring). As in this
case, such a protective order prevents a party from
disseminating only that information obtained through
use of the discovery process. Thus, the party may
disseminate the identical information covered by the
protective order as long as the information is gained
through means independent of the court’s processes.
In sum, judicial limitations on a party’s ability to
disseminate information discovered in advance of trial
implicates the First Amendment rights of the re-
stricted party to a far lesser extent than would
restraints on dissemination of information in a dif-
ferent context.
Seattle Times Co., 104 S.Ct. at 2207-2208 (footnotes omit-
ted).
* * *
. Liberal discovery is provided for the sole
purpose of assisting in the preparation and trial, or
the settlement, of litigated disputes. Because of the
liberality of pretrial discovery permitted by Rule 26
(b)(1), it is necessary for the trial court to have
the authority to issue protective orders conferred by
Rule 26(c). It is clear from experience that pretrial
A35
discovery by depositions and interrogatories has a
significant potential for abuse. This abuse is not
limited to matters of delay and expense; discovery
also may seriously implicate privacy interests of lit-
igants and third parties. The Rules do not distin-
guish between public and private information. Nor
do they apply only to parties to the litigation, as
relevant information in the hands of third parties
may be subject to discovery.
There is an opportunity, therefore, for litigants
to obtain—incidentally or purposefully—information
that not only is irrelevant but if publicly released
could be damaging to reputation and privacy. The
government clearly has a substantial interest in pre-
venting this sort of abuse of its processes. Cf. Herbert
v. Lando, 441 U.S. 153, 176-177, 99 S.Ct. 1635, 1648-
1649, 60 L.Ed.2d 115 (1979); Gumbel v. Pitkin, 124
U.S. 131, 145-146, 8 S.Ct. 379, 384-385, 31 L.Ed. 374
(1888). As stated by Judge Friendly in International
Products Co. v. Koons, 325 F.2d 403, 407-408 (CA2
1963), “[w]hether or not the Rule ‘itself authorizes
[a particular protective order] .. . we have no ques-
tion as to the court’s jurisdiction to do this under
the inherent ‘equitable powers of courts of law over
their own process, to prevent abuses, oppression, and
injustices.’” (citing Gumbel v. Pitkin, supra). The
prevention of the abuse that can attend the coerced
production of information under a state’s discovery
rule is sufficient justification for the authorization
of protective orders.
Seattle Times Co., 104 S.Ct. at 2208-2209 (footnotes omit-
ted).
tsar
A36
FORT MYERS BROADCASTING COMPANY v. NELSON
460 So.2d 420 (Fla. 2d DCA 1984)
We deny the petition for a writ of certiorari from the
trial court’s order closing to the public all discovery
depositions in this libel lawsuit. See Seattle Times
Co, v. Rhinehart, ........ Mi cae , 104 S.Ct. 2199, 81
L.Ed.2d 17 (1984); Fla.R.Civ.P. 1.280(c).
We shortly address the term, “pretrial discovery depo-
sitions.” The word pretrial needs no elaboration. Dis-
covery is partially defined in Black’s Law Dictionary, Re-
vised Fourth Edition, “In a general sense, the ascertain-
ment of that which was previously unknown; the disclosure
or coming to light of what was previously hidden.” Dis-
covery in criminal cases is provided in Florida Rule of
Criminal Procedure 3.220 and discovery depositions are
specifically provided in Florida Rule of Criminal Pro-
cedure 3.220(d) where it is said,
At any time after the filing of the indictment or in-
formation the defendant may take the deposition upon
oral examination of any person who may have infor-
mation relevant to the offense charged. The deposi-
tion shall be taken in a building where the trial may
be held, such other place agreed upon by the parties
or where the trial court may designate by special or
general order.
It is further provided, “Any deposition taken pursuant
hereto may be used by any party for the purpose of con-
tradicting or impeaching the testimony of the deponent
as a witness.” Finally, the matter of notice and subpoenas
is treated. Florida Rule of Criminal Procedure 3.220(a)
discusses in detail the prosecutor’s many obligations with
reference to discovery. We think it is significant that
A37
these important functions shall, according to Florida Rule
of Criminal Procedure 3.220(a)(3), be performed in any
manner mutually agreeable to the prosecutor and defense
counsel or as ordered by the court. In other words, court
supervision of the discovery process is not required so
long as counsel can agree. Finally, the term “deposition”
means the testimony of a witness given in advance of the
trial upon oral examination or written questions where
there is an opportunity for cross-examination. See gen-
erally 19 Fla. Jur.2d Discovery and Depositions § 59.
The Press urges that it should have access to pretrial
discovery depositions as here contended unless someone
moves for a protective order and successfully meets the
three-pronged test promulgated in Miami Herald Pub. Co.
v. State, 363 So.2d 603 (Fla. 4th DCA 1978) and adopted
by the Florida Supreme Court in Miami Herald Pub. Co.
v. Lewis, 426 So.2d 1 (Fla.1982). The test is that movants
seeking closure or protection must establish:
1. Closure is necessary to prevent a serious and im-
minent threat to the administration of justice;
2. No alternatives are available other than a change
of venue, which would protect a defendant’s right to
a fair trial; and
3. Closure would be effective in protecting the rights
of the accused, without being broader than necessary
to accomplish this purpose.
In Miami Herald Pub. Co. v. Lewis, closure was sought
as to a hearing on a motion to suppress the defendants’
confessions in a homicide case. Different from the instant
case, the suppression hearing was to be conducted before
the judge in court. Moreover, different from the matter
of pretrial discovery, the dimension of the problem in
A38
Miami Herald Pub. Co. v. Lewis, was quite apparent. There
had been extensive pretrial media coverage of the murder
of a four-year-old child and the public, thanks to the media,
was aware that the defendant had confessed. So the im-
portant but simple question there projected was: Should
the media have the right to attend the suppression hearing
and to publish its happenings and the content of the con-
fession?
[7] We hold that the three-pronged test is not ap-
plicable to pretrial discovery proceedings such as discovery
depositions because, among other things, the taking of such
depositions is not a judicial proceeding since the judge
is not in attendance and since the deposition cannot be
received in evidence. More importantly, if such test were
to be considered as applicable, it would be impossible to
apply because of the inherent nature of such depositions.
Counsel cannot know in advance what testimony will be
adduced at discovery depositions.
Usually and for obvious reasons such discovery depo-
sitions are aimed at hostile witnesses, witnesses that refuse
to communicate or give statements and witnesses that re-
fuse to cooperate with counsel or his investigator seeking
information. The reasons why counsel may seek to depose
a witness in a criminal case defy being catalogued. Per-
haps based on hunch or hearsay it is thought that the wit-
ness may have some knowledge of some kind about some
facet of the alleged crime. The witness upon being de-
posed may reveal that he or she was an eye-witness or a
participant or that the witness knows nothing. It may
uncover incriminating or exculpatory information of large
or small magnitude about all or some of the events. Again,
the point is that counsel cannot know in advance, except
by way of possible speculation and conjecture, what the
witness knows and the scope of the testimony. Under
A39
these circumstances counsel cannot apply in advance for
protection and, if he did do so, he would have no way of
satisfying the three-pronged test. Repetitively, how can he
protect his client’s right to a fair trial when he does not
know if the witness’s unrevealed and undiscovered testi-
mony, if released to the media, would prejudice and place
the defendant in jeopardy?
All who have taken discovery depositions know that
it entails fishing on a dangerous and uncharted sea. How-
ever, they are very valuable tools and, in our opinion, a
lawyer would be remiss in not making pretrial inquiry of
witnesses where he has reason to think they may have
knowledge of some kind concerning the alleged crime. If
the witness incriminates the defendant when the indicated
areas are plumbed, counsel will at least know what he
may be faced with at trial and undertake to mount a de-
fense. Counsel can undertake to elicit impeachment testi-
mony and other matters that might impair the credibility
of the witness. If the witness has friendly testimony then,
of course, counsel will add the witness to his trial witness
list.
{8, $] Practical considerations militate against press
access, although it is agreed that such considerations could
not prevail if access was constitutionally mandated. As
before mentioned, discovery depositions are not subject to
admission into evidence. Jackson v, State, 453 So.2d 456
(Fla. 4th DCA 1984) Terrell v. State, 407 So.2d 1039 (Fla.
lst DCA 1981).* Moreover, as a general rule, there are
many questions and answers that are proper as a matter
of discovery which would not be allowable even if pro-
duced live at trial. Thus, if the Press is present at depo-
3. Of course, depositions taken to perpetuate testimony,
different from discovery depositions, would be admissible. See
Fla.R.Crim.P. 3.190(j).
A40
sition time it is fair to say that such presence would severely
chill or inhibit the discovery process. The questioner is
not likely to explore or pursue needed subjects and areas
as he normally would if he learns that the answers may
prejudice or damage his client or others if the answers are
published before trial as indicative of the facts of the case.
[10] Such depositions are often arranged orally with-
out formal notice for the convenience of counsel. Some-
times they are arranged on short notice and in such case
it could be awkward to be required to give the Press
reasonable notice. In addition, depositions are most often
scheduled for a lawyer’s or court reporter’s office where
space is limited. Without laboring it, most such places
simply will not have sufficient accommodations to allow
the presence of the media, especially in cases that the
media would deem sensational or specially newsworthy.
Moreover, it should be recognized that the right of access
for the press is no greater than that of the general public.
Pell v. Procunier and Howchins v. KQED, 417 U.S. 817,
94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). In other words,
if the press can attend pretrial discovery depositions, so
can the general public and this would only exacerbate
the mentioned problem.
Finally, if media access should be required, it is
reasonably predictable there will be collisions out of the
presence of the court between counsel and the media as
to access and the terms of it. These collisions will in
many instances, we feel, require resolution by the court.
This will require hearings, notice, counsel, orders, and
the whole panoply. This will impose an additional work
load on the judges and delay the prosecution.
We feel in sum that pretrial discovery depositions
are but a part of pretrial preparation and as such are
not a proper subject for press intrusion.
A4l1
Finally, it seems to us that if those in higher author-
ity believe in their wisdom that the Press should prop-
erly have the access for which they contend, we suggest
that it should be accomplished by Supreme Court amend-
ments to our rules of procedure, a matter within that
court’s purview and jurisdiction. See Art. V, § 2(a),
Fla. Const. See dissent in State ex rel. Gore Newspaper
Co. v. Tyson, 313 So.2d 777 at 790 (Fla. 4th DCA 1977),
overruled on other grounds, English v. McCrary, 348 So.2d
293 (Fla.1977). We presume to say this based on our
holding here to the effect that there is now no constitu-
tional, procedural, or substantive mandate for such access.
[11, 12] We, on our own motion, hereby certify to
the Supreme Court of the State of Florida, pursuant to
Florida Rule of Appellate Procedure 9.030(a) (2) (v), that
the following questions are of great public importance:
1. IS THE PRESS ENTITLED TO NOTICE AND
THE OPPORTUNITY AND RIGHT TO ATTEND
PRETRIAL DISCOVERY DEPOSITIONS IN A CRIM-
INAL CASE?
2. IS THE PRESS ENTITLED TO ACCESS TO
PRETRIAL DISCOVERY DEPOSITIONS IN A CRIM-
INAL CASE WHICH MAY OR MAY NOT HAVE
BEEN TRANSCRIBED BUT WHICH HAVE NOT
BEEN FILED WITH THE CLERK OF COURT OR
THE JUDGE?
AFFIRMED.‘
4. Having been afforded the privilege of reviewing the
dissents filed by our colleagues prior to publication, we wish, not
seeking the last word but in the interest of completeness, to offer
a few additional comments so that the distinctions between our
viewpoints may be finely drawn.
(Continued on following page)
A42
DOWNEY, HERSEY, DELL and WALDEN, JJ., con-
cur.
LETTS, J., concurs specially with opinion.
ANSTEAD, C.J., with whom HURLEY and BARKETT,
JJ., join, dissents with opinion.
HURLEY, J., with whom GLICKSTEIN and BARK-
ETT, JJ., join, dissents with opinion.
GLICKSTEIN, J., with whom HURLEY, J., joins,
dissents with opinion.
Footnote continued—
American Telephone & Telegraph Co. v. Grady, 594 F.2d
594 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59
L.Ed.2d 787 (1979) is cited for the proposition that pre-trial dis-
covery depositions are open to the public. An examination of that
case reveals that it does so state. However, we dare to question
the worth of that precedent inasmuch as such statement is, in our
opinion, a pure ipse dixit in that it cites no authority for such
conclusion. It has been tracked and cited by several trial court
federal cases which, likewise, cite no authority or compelling
reason for the stance, being content to simply cite American
Telephone & Telegraph Co. v. Grady, supra.
Indeed, not all federal cases support open depositions. See
Times News Ltd. v. McDonnell Douglas Corp., 387 F.Supp. 189
(1974), which held that depositions, as opposed to trials, are not
open to public or press, and that neither the public or press has
a right to be present.
The common thread which we divine from the dissenting
opinions is that somehow the Florida Rules of Procedure as writ-
ten command that public and press are entitled, as a matter of
right to attend pretrial discovery depositions. It is here that
we also part company.
Hoping not to be merely argumentative, we have searched
the Rules and not found a mention of public and press or that
they are entitled to notice and attendance at such depositions.
We have dissected Florida Rule of Civil Procedure 1.280 and
do not reach a conclusion that it serves that purpose. It is true
that section (c) of that Rule provides for protective orders for
many purposes, one of which is “(5) that discovery be conducted
(Continued on following page)
A43
LETTS, Judge, concurring specially:
I agree with the majority. I am also of the opinion
that this en banc offering, to say the least, is already
overcrowded with individual expression. Nonetheless I
cannot resist brief comment of my own.
First of all, our Florida Supreme Court, rightly or
wrongly, has flatly stated that the Press does not enjoy
a constitutional right to attend pre-trial hearings. Miami
Herald Publishing Co. v. Lewis, 426 So.2d 1, 6 (Fla.1982).
If it has no present constitutional right to attend pre-trial
HEARINGS then, a fortiorari, it has no present consti-
tutional right to attend pre-trial DEPOSITIONS. This
current Supreme Court holding, which we must follow.
and which in its turn followed Gannett Co., Inc. v.
DePasquale, supra, is one of the reasons why the majority
Footnote continued—
with no one present except persons designated by the court.” We
construe its application to be limited to instances where the parties
do not agree and there is controversy between them as to who may
be present. For example, this might be applicable where trade
secrets or sensitive matters will be pursued or where one of the
parties or his or her friends insist on being present and are dis-
ruptive. We do not read it that everybody, public and press, are
entitled ipso facto to attend unless the court orders otherwise.
To repeat, if the Rules are to be the avenue so opening up depo-
sitions, then the Rules in our opinion must be amended to spe-
cifically so state.
Finally, and hoping not to unduly labor the matter, we
reject the suggestion that in this area the federal and Florida
rules of procedure are so similar that the federal decisions as to
federal rules necessarily bind Florida courts. Without comparing
them rule by rule, we believe that there are significant differ-
ences. For instance, Rule 30(f)(1) of the Federal Rules pertains
to the court reporter. It requires, with reference to depositions,
that he or she shall certify it, securely seal it, and promptly file
it with the court. Differently, our Florida Rule 1.310(f) does
not require that a deposition be filed or even transcribed. See
Tavoulareas v. Washington Post Co., 737 F.2d 1170 (D.C.Cir.1984)
(en banc), and particularly footnotes 12 and 14.
A44
has affirmed and then soughi to lay all doubt to rest by
certifying the question.
As to the several dissenting views that the Press
has a right to attend criminal depositions under Florida
Rule of Civil Procedure 1.280(c) (5), I cannot accept them
though the Federal cases cited are not inapt. To my
way of thinking, the draftsmen of the Florida provisions
concerning discovery, never in their wildest dreams con-
templated that the protective order subsection would be
so interpreted and certainly it does not expressly permit
such a construction. Indeed, if I am wrong, then it must
follow that the Press has the right to be present at all
civil depositions in lawyers’ offices. Even the Press does
not advance such an argument in this appeal and I hope
our Supreme Court will not countenance it.
Finally, the main dissent’s admission that where depo-
sitions are involved, “the showing need not be of the same
magnitude required to close a court hearing” means little
to me unless I am told what lesser showing will be re-
quired. It is suggested that the right to actual presence
might be substituted instead for a right to transcription
if the Press pays for it. To me this is a distinction with-
out much of a difference, except for dollars and cents.®
ANSTEAD, Chief Judge, with whom HURLEY and
BARKETT, Judges, join, dissenting:
I cannot agree with the majority’s blanket denial of
public access to pretrial criminal depositions. Respectfully,
I believe the majority has placed the presumption, indeed
5. It perhaps could be argued that lack of actual presence
might lessen the chilling effect referred to in the majority opin-
— However, this argument is not advanced by the particular
issent.
A45
a conclusive presumption, on the wrong side. While I
believe that the showing required to justify the closure
of a deposition should be much less than that required
to justify the closure of a court hearing or a trial, I never-
theless believe that there should be a presumption of
public access to depositions taken after a public criminal
prosecution is initiated and that the party seeking to ex-
clude the public must convince the court that “closure is
essential to preserve higher values and [that the terms of
closure are] narrowly tailored to serve that interest.”
Press-Enterprise Co. v. Superior Court of California, 464
U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).
Without even considering the federal constitutional
interests involved, it is clear that Florida has long recog-
nized that “the people have a right to know what occurs
in the courts.” Miami Herald Publishing Co. v. Lewis, 426
So.2d 1 (Fla.1982). This right of access has been recog-
nized not only in the case of trials and pretrial hearings,
but also in the case of criminal depositions and even un-
6. The ruling of the majority, in my view, conflicts with
the very U.S. Supreme Court holding cited in support of the
ruling. In Seattle Times Co. v. Rhinehart, ........ if es , 104
S.Ct. 2199, 81 L.Ed.2d 17 (1984), the Supreme Court implicitly
recognized that the burden was on a party seeking to prevent
public disclosure to secure a protective order:
We therefore hold that where, as in this case, a protective
order is entered on a showing of good cause as required by
Rule 26(c), is limited to the context of pretrial civil dis-
covery, and does not restrict the dissemination of the in-
formation if gained from other sources, it does not offend
the First Amendment.
104 S.Ct. 2199 at 2209-10. While upholding the protective order
entered the Court nevertheless put the shoe on the right foot.
Other federal courts have explicitly held that civil discovery
depositions are open to the public absent a protective order to
the contrary. AT & T v. Grady, 594 F.2d 594 (7th Cir.1978). If
this is true in civil cases it must surely also apply to criminal cases
where the public is in a very real sense a party to the proceedings
and certainly has a greater interest in access to the proceedings.
A46
transcribed tape recordings furnished as discovery by the
state to the defendant in a criminal prosecution. Talla-
hassee Democrat, Inc. v. Willis, 370 So.2d 867 (Fla. lst
DCA 1979) and Satz v. Blankenship, 407 So.2d 396 (Fla.
4th DCA 1981), pet. for rev. denied, 413 So.2d 877 (Fla.
1982).
In Satz, this court construed the provisions of the
Public Record Act, section 119.01, Florida Statutes (1979)
to mandate public access to any discovery information
possessed by the state once that information is disclosed
to a criminal defendant:
[O]nce the tape recordings were given to jthe de-
fendant] the information no longer carried with it the
legitimacy of law enforcement secrecy. At the point
of disclosure, the information became public in a sense
as public information, it lost its efficacy in deterring
criminal activity. Accordingly, the trial court acted
properly in releasing the tapes to appellee.
Id. at 398. For the life of me I do not see how we can
mandate public access to an untranscribed tape recording
and yet deny access to an untranscribed deposition. It
is the public’s right of access to the information that is
crucial, not the particular form or container in which that
information may be found.
Similarly, I cannot accept the totally technical and
semantical distinction made by the majority between the
right of access to a deposition transcribed and filed, a
decision presumably made solely at the discretion of the
lawyers involved, and a deposition taken but not tran-
scribed. Again, it is the public’s right to access to the
information disclosed at the deposition that should be de-
terminative. That determination should not be left to
the unbridled discretion of the lawyers, either of whom
A47
presumably could order transcription without the per-
mission of the other or court order. Hence, poof!, “secret”
information is transformed into “public” information,
The same observations may be made of the contentions
that depositions are not “judicial proceedings.”’ Tell that
to someone being tried for perjury or to someone seeking
a qualified or absolute privilege in a defamation action.
Depositions are taken by the invocation of all the same
judicial authority that is called to bear when a witness
is subpoenaed to testify in any official court proceeding.
The public prosecution of a criminal defendant is a judicial
proceeding and the compelled testimony of a witness taken
prior to trial is an integral part of that judicial proceeding.
The witness is compelled to attend by the service of a
subpoena issued under the authority of the court. The
7. Fla.R.Crim.P. 3.220(d) provides:
Discovery Depositions. At any time after the filing of the
indictment or information the defendant may take the depo-
sition upon oral examination of any person who may have
information relevant to the offense charged. The deposition
shall be taken in a building where the trial may be held,
such other place agreed upon by the parties or where the
trial court may designate by special or general order. The
party taking the deposition shall give written notice to each
other party. The notice shall state the time and place the
deposition is to be taken and the name of each person to be
examined. After notice to the parties the court may, for
good cause shown, extend or shorten the time and may change
the place of taking. Except as provided herein, the pro-
cedure for taking such deposition, including the scope of the
examination, shall be the same as that provided in the
Florida Rules of Civil Procedure. Any deposition taken pur-
suant hereto may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent
as a witness. The trial court or its clerk shall, upon appli-
cation, issue subpoenas for the persons whose depositions
are to be taken. A resident of the State may be required
to attend an examination only in the county wherein he
resides, or is employed, or regularly transacts his business
in person. A person who refuses to obey a subpoena served
upon him may be adjudged in contempt of the court from
which the subpoena issued.
A48
witness is sworn to testify truthfully in that judicial pro-
ceeding and is subject to sanctions by the court for failure
to appear, failure to testify, or failure to testify truthfully.
That deposition is then subject to use for a multitude of
purposes, including plea bargaining, use at pretrial hearings,
and use at trial. Indeed, Florida, like virtually every other
jurisdiction, has in essence a pretrial criminal justice sys-
tem in which the overwhelming majority of cases are con-
cluded without a trial. In most instances, then, the in-
formation disclosed through discovery will be the only
information the public has about the facts of the case.®
We must also keep in mind that there is nothing to prevent
a defendant from taking a private statement from a witness
out of the public’s presence. It is only when the formal
authority of the court is invoked by the use of a deposi-
tion that the invocation of the presumption of public ac-
cess is necessary.
In my view, once the public’s prosecutor elects to ini-
tiate a public prosecution, there should be a presumption
8. As Justice Stevens noted in concurrence in Press-Enter-
prise,
{T]he distinction between trials and other official proceed-
ings is not necessarily dispositive, or even important, in
evaluating the First Amendment issues. ...
The focus commanded by the First Amendment makes
it appropriate to emphasize the fact that the underpinning of
our holding today is not simply the interest in effective
judicial administration; the First Amendment’s concerns are
much broader. The “common core purpose of assuring free-
dom of communication on matters relating to the function-
ing of government,” Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 [100 S.Ct. 2814, 65 L.Ed.2d 973] (1980) (plurality
opinion), that underlies the decision of cases of this kind
provides protection to all members of the public “from
abridgment of their rights of access to information about
the operation of their government, including the Judicial
Branch.” Id., at 584, 100 S.Ct. at 2831 (Stevens, J.. con-
curring).
A49
of openness to all events that take place, including the
taking of depositions. The burden should be on the one
seeking to exclude the public’s eye to establish an over-
riding interest in the maintenance of secrecy of the par-
ticular proceeding. As noted earlier, such a showing need
not be of the same magnitude required to close a court
hearing. The right and the value to access to those pro-
ceedings is markedly higher, arguably, than to access to
depositions. Nevertheless, some showing should be made
if the issue arises. Perhaps, in some instances, as in the
case of the tape recording in Satz, the right of access will
be limited to the right to have the deposition transcribed,
at the expense of the public member seeking access. In-
deed, since the public has no right to participate in the
deposition, the right to transcription may be an attractive
alternative to live attendance in many cases. This would
alse solve the litany of practical problems discussed in the
majority opinion. Again, it is recognition of the right of
public access to the information that should be the focus
of concern.
As to the need for revision of our rules to accommodate
access, the rules are already in place. The criminal rules
as to depositions either closely parallel or incorporate by
reference the rules of civil procedure pertaining to dis-
covery. Both sets of rules require a party to secure a
protective order if the discovery is to be conducted outside
the public eye. The federal courts have explicitly inter-
preted similar federal rules to mandate public access absent
a protective order:
9. Some proceedings are closed by statute. For example
see Florida Statutes, Section 905.24 (grand jury proceedings);
Section 934.08 (information gained through wiretaps); Section
934.091 (names of subjects of wiretaps). Also see Satz case cited
in body of opinion for secrecy of police investigatory files.
A50
As a general proposition, pretrial discovery must
take place in the public unless compelling reasons
exist for denying the public access to the proceedings.
AT & T v. Grady, 594 F.2d 594 (7th Cir. 1978). Florida
Rule of Civil Procedure 1.280(c)(5) specifically provides
that upon motion and for good cause shown a party may
secure a protective order limiting those persons who may
be present when a deposition is taken. This provision
would certainly apply as well to criminal depositions where
the rule expressly provides that the procedure for taking
criminal depositions will be the same as in civil cases
except as is expressly provided otherwise. Fla.R.Crim.P.
3.220(d). In short, we need not worry about devising new
rules and procedure since it appears that the drafters of
the rules contemplated that there might be times when
the parties wanted to exclude others from a deposition and
they had a good reason for doing so. I would do no more
than mandate compliance with these rules, keeping in mind
the public policy of this state in favor of disclosure. At
the same time, however, I would do no less.
HURLEY, Judge, with whom GLICKSTEIN and
BARKETT, Judges, join, dissenting.
The trial court predicated its order excluding the press
from pretrial discovery depositions on the rationale that
depositions are not judicial proceedings and, therefore,
“there is no right to access by the public personally or the
media to attend the taking of discovery depositions.” By
taking this blanket position, the court abrogated its re-
sponsibility under Rule 1.280(c) (5), Fla.R.Civ.P., to re-
strict attendance at discovery depositions only for good
cause. The trial court’s formulation relieves it of any
necessity to exercise its discretion on a case-by-case basis.
This, in my view, constitutes a departure from the es-
sential requirements of law.
A51
Discovery depositions in criminal cases are governed by
Rule 3.220(d), Fla.R.Crim.P., which states that “[e|xcept
as provided herein, the procedure for taking such deposi-
tion .. . shall be the same as that provided in the Florida
Rules of Civil Procedure.” Rule 1.280(c) (5), Fla.R.Civ.P.,
in turn, authorizes a trial court, “for good cause shown,”
to order “that discovery be conducted with no one present
except persons designated by the court... .” (Emphasis
supplied.) Thus, the rules of court—not the common law
nor the constitution—give rise to a presumption of open-
ness for pretrial discovery. “As a general proposition,
pretrial discovey must take place in the public unless
compelling reasons exist for denying the public aczess to
the ~roceedings. American Telephone & Teiegraph Co.
v. Gridy, 594 F.2d 594, 596 (7th Cir.1978), cert. denied, 440
U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979); see also
Tavoulareas v. Washington Post Co., 737 F.2d 1170 (D.C.
Cir.1984) (en banc); Broan Manufacturing Co. v. Westing-
house Electric Corp., 101 F.R.D. 773 (E.D. Wis.1984).'°
It is significant that the parties in this case attempted
to establish good cause to exclude the press, but failed.”
10. Federal case law is persuasive in this area because the
Florida Rules of Civil Procedure are patterned after the federal
rules. See In re Estate of Zimbrick, 453 So.2d 1155 (Fla. 4th
DCA 1984) (en banc); Tallahassee Democrat, Inc. v. Willis, 370
So.2d 867 (Fla. lst DCA 1979). The majority notes that Florida
does not have any appellate decisions directly on point. Ante,
at 573. There are, however, several reported trial court de-
cisions which uphold the right of the press to attend pretrial
discovery depositions. See Cazarez v. Church of Scientology, 6
Med.L.Rptr. 2109 (Fla. 6th Cir.Ct.1980); State v. Diggs, 5 Med.
L.Rptr. 2596 (Fla. 11th Cir.Ct.1980); State v. Alford, 5 Med.L.
Rpt. 2054 (Fla. 15th Cir.Ct.i979); State v. Bundy, 4 Med.L.Rptr.
2629 (Fla. 2d Cir.Ct.1979).
11. The state filed a motion for a protective order pursuant
to Rule 1.280(c)(5), Fla.R.Civ.P. Although the defense decided
not to join in the motion, counsel indicated that he did not oppose
it. Moreover, his remarks indicate that he favored the motion.
A52
The trial court (a predecessor to the trial judge who
entered the order on appeal) denied the state’s motion
without prejudice. Rather than reapply, the state entered
into an agreement with the defense to take depositions of
witnesses at various times and places unknown to the
press. Indeed, the trial court expressly found that “the
defendant and the State admit that it is their intent to
avoid taking depositions with the News Media present.”
Only when the press realized that it had won a hollow
victory, did it petition for the right to attend pretrial dis-
covery depositions.
In my view, the parties should not be permitted to
achieve through collusion what they could not obtain by
court order. Litigation is not the parties’ private preserve;
it is conducted in a public forum subject to rules which
embody public policy choices.’* In the case at bar, first
the parties and then the court chose to disregard the rule’s
presumption of openness. This constitutes a sufficiently
serious error to justify issuing the writ and quashing the
order. The trial court should be instructed to safeguard
the openness of pretrial discovery unless and until good
cause is established to justify a limitation. “Good cause,”
of course, is a flexible standard which can be adapted to
meet the exigencies of individual cases. Inasmuch as at-
tendance at pretrial discovery proceedings does not rest
on the constitutional right of access, I too agree that good
cause may be measured by a lesser standard than that
required for closure of trial proceedings.
GLICKSTEIN, Judge, with whom HURLEY, Judge,
joins, dissenting:
12. “These policies relate to the public’s right to monitor
the functioning of our courts, thereby insuring quality, honesty,
and respect for our legal system.” In re Continental Illinois Se-
curities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984).
A53
My learned colleagues who find no constitutional right
of press access to pretrial discovery deposition proceedings
are not in error. See, e.g., Tavoulareas v. Washington Post
Co., 724 F.2d 1010, 1017 (D.C. Cir.), vacated on other
grounds, 737 F.2d 1170 (1984) (en banc); Nixon v. Warner
Communications, Inc., 435 U.S. 589, 608-10, 98 S.Ct. 1306,
1317-18, 55 L.Ed.2d 570 (1978); Zenith Radio Corp. v.
Matushita Electric Industrial Co., 529 F.Supp. 866, 913-14
(E.D.Pa.1981). It is likewise clear that at common law
deposition documents were accessible to the public only
after they were filed with the court. But, as both Judge
Anstead and Judge Hurley point out, a presumption of
openness of discovery proceedings apparently derives from
our rules of procedure.
I decline to concur with Judge Anstead’s opinion only
because some of his discussion may be susceptible to the
deduction some more fundamental basis for openness of
pretrial discovery proceedings exists than our rules of
procedure. I concur with Judge Hurley’s opinion because
it finds the presumption of openness only by virtue of those
rules.
It has been frequently stated that where a provision
of Florida rules of procedure is substantially identical with
a federal rule, we should use federal court decisions to
illuminate our rule. E.g. Shooster v. Gelfand, 439 So.2d
1000, 1001 (Fla. 4th DCA 1983); Carson v. City of Fort
Lauderdale, 173 So.2d 743, 744 (Fla. 2d DCA 1965). Here,
Florida Rule of Criminal Procedure 3.220(d) adopts, for
taking depositions, the procedure which is provided in our
civil procedure rules, with exceptions not pertinent here.
Rule 1.280(c), Florida Rules of Civil Procedure, which
concerns protective orders pertaining to discovery, includ-
ing depositions, is substantially identical with Federal Rule
of Civil Procedure 26(c). Judge Hurley cites cases from
A54
two United States Circuit Courts of Appeal that clearly
state the presumption implied in the latter rule, that dis- .
covery proceedings are open unless a protective order for
good cause has been obtained. Times Newspapers Limited
conflicts, but it is older and the product of a trial court.
In the circumstances I think we must recognize that the
prevailing federal courts’ construction of the federal rule
is applicable as well to ours, since we do not know that in
adopting the federal rule language our Supreme Court
intended a different construction.
I agree that the questions of great public importance,
as stated in the opinion for the court, should be certified
to the Florida Supreme Court. They can tell us for certain
what they intended when they adopted rule 1.280(c).
A55
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. 82-5858 CF
STATE OF FLORIDA,
Vs.
LINDA AURILIO,
Defendant.
ORDER
(February 28, 1983)
This cause came on to be heard on Palm Beach News-
papers, Inc. Motion to Reconsider this Court’s oral ruling
of February 10, 1983, and written order of February 11,
1983, that depositions are not judicial proceedings. The
Court granted the Motion to Reconsider, considered the
memoranda submitted February 24, 1983, by counsel
for Palm Beach Newspapers and the defendant, and at a
hearing on February 25, 1983, considered arguments by
counsel for Palm Beach Newspapers, the state and the
defendant. Counsel for the News and Sun Sentinel Co.
also appeared and adopted the arguments of Palm Beach
Newspaper. The Court now determines that its initial
decision that depositions are not judicial proceedings is
proper. Tallahassee Democrat, Inc. v. Willis, 370 So.2d
867 (Fla. lst DCA 1979), Ocala Star Banner v. Sturgis, 388
So.2d 1367 (Fla. 5th DCA 1980). Therefor, there is no
right of access by the public personally or the media to
attend the taking of discovery depositions.
A56
Upon reconsideration, this Court finds that it over-
extended itself in the February 11 order by requiring the
defendant to submit her depositions to the Court for an
in camera inspection. Depositions are not “court records”
until filed with the clerk. Fla. R. Jud. Admin. 2.075
(a)(1). The present rule, Fla. R. Civ. Pro. 1.310(f) (3)
precludes the filing of depositions except upon court order
when they are necessary for the determination of a pend-
ing matter. Chief Judge Lewis Kapner of the Fifteenth
Judicial Circuit has directed the Clerk of the Circuit
Court not to accept for filing any depositions, interroga-
tories or documents in response to requests for production
except by court order. (Memo of February 3, 1982, from
Chief Judge Lewis Kapner to John Dunkle, Clerk of
Court.) The Court therefore recedes from that portion
of the order requiring the defendant and the State to
designate which portions of defendant’s depositions they
wish the Court to review so they could be made available
to the media through arrangements with the court re-
porter. Copies of the depositions tendered to the Court
will be returned to the defendant and the State.
In regard to the depositions already taken, if the
parties agree to do so they may be filed and the parties
may request a hearing in camera. If any depositions are
filed in this cause after a court order, they will obviously
be available to the media and the public. If depositions
are required to be filed and the parties seek protection
from publication, the Court will look to the state and the
defendant to file a motion for closure.
For the benefit of the media so they may take an
appeal, the Court realizes this is a matter of great public
concern which the appelkte court should specifically
address.
A57
DONE AND ORDERED IN CHAMBERS AT WEST
PALM BEACH, PALM BEACH COUNTY, FLORIDA,
ON THIS 28th DAY OF February, 1983.
/s/ Richard B. Burk
Circuit Judge
copies furnished:
Assistant State Attorney Carl Weinberg
Assistant Public Defender Andrew Klyman
Wilton L. Strickland, Esq.
L. Martin Reeder, Jr., Esq.
A58
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
CRIMINAL DIVISION T (BURK)
CASE NO. 82-5858 CF
STATE OF FLORIDA,
vs.
LINDA J. AURILIO,
Defendant.
ORDER
(February 11, 1983)
THIS CAUSE came on to be heard on the Defendant
AURILIO’s Motion to Dismiss directed to Press Inter-
venor’s Motion for Limited Intervention to Oppose Closure
and To Obtain Access to Public Records, and Motion to
Open Access to Pre-Trial Depositions and to Order Pro-
duction of Public Records. Upon argument of counsel
for the Defendant AURILIO, the State of Florida, and
the Press Intervenor, and the Court being otherwise fully
advised in the premises, it is
ORDERED AND ADJUDGED:
1. Defendant AURILIO’s Motion to Dismiss directed
to the two Motions filed in this cause by the Press Inter-
venor be and the same is hereby denied.
2. It is this Court’s determination and ruling that
the taking of a deposition is not a judicial proceeding for
purposes of allowing access to the taking of that deposi-
A59
tion to the public or to media representatives. Press In-
tervenor’s reporters shall not be permitted to attend the
actual taking of those depositions that remain to be taken
in this cause unless otherwise agreed to by the parties
(RBB).
3. As to those depositions that have been previously
taken in this cause, the State of Florida and the Defen-
dant AURILIO shall have until Thursday, February 17,
1983, 5:00 P.M. to provide a list of all of the depositions
heretofore taken in this cause to counsel for the Press
Intervenor and a copy for the Court file (RBB). Defense
Counsel and/or the State shall, at that time, designate
which depositions they wish the Court to review in camera
and give the reason(s) for such requests. The State
and/or Defense Counsel shall provide the Court with the
page numbers of the designated depositions with copies
of the depositions for the Court to review. Those depo-
sitions where no such motion or request is made by the
State cr Defense Counsel shall be made immediately avail-
able by the Court Reporter to the media (RBB) for their
review and copying as may be arranged with the Court
Reporter (RBB). The State and Defense Counsel shall
advise the Court Reporter as to those depositions there
is no problem with so that they can be made immediately
available to the media (RBB).
4. As to the disposition of future depositions in this
cause, the State and the Defense Counsel shall file notices
of taking said depositions with the Clerk of the Court
for filing in the Court file. As to future depositions. either
the State or Defense Counsel shall have 48 hours from
receipt of the transcribed deposition to make a deter-
mination as to whether or not they wish to petition the
Court for said deposition or portions thereof to be sealed
A60
and not released to media representatives. If no ob-
jection or motion for in camera review is filed within the
48 hours by either the State or the Defense Counsel, it
shall be deemed that there is no objectionable material
in said deposition and the Court Reporter shall release
the deposition to the media representatives for their re-
view and copying.
DONE AND ORDERED in Chambers at West Palm
Beach, Palm Beach County, Florida, on this 1lth day of
February, 1983.
/s/ Richard B. Burk
Circuit Judge
SEAL
Copies Furnished:
Assistant State Attorney Carl Weinberg
Assistant Public Defendant Andrew Klyman
Wilton L. Strickland, Esquire
A61
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA.
CASE + 82-5858-CF AO2
STATE OF FLORIDA,
vs.
LINDA AURILIO,
Defendant.
ORDER
(January 18, 1983)
This matter came before the Court on the Defendant,
Linda Aurilio’s Motion to Determine her Sixth Amend-
ment (6th) rights under the United States Constitution.
The Defendant through her attorney seeks to depose cer-
tain witnesses who have knowledge relative to this case.
At a prior hearing in the Palm Beach County Court House,
the defendant sought to exclude the press from a sched-
uled deposition. This matter was appealed by the Media
to this Court and this Court by order dated, December 8.
1982, DENIED the Motion to Exclude the Press.
Since that time, the Defendant and the State have
made mutual private agreements to take the depositions
of witnesses at various times and places unknown to the
News Media. The defendant and the State admit that
it is their intent to avoid taking the depositions with the
News Media present. The Media through its reporters
have telephoned the defendant and the State and de-
=
A62
manded copies of the depositions. The Media takes the
position that the transcript of depositions are public ma-
terial and should be provided to them. The Media also
contends that the State and Defendant have conspired
to evade the Court’s Order prohibiting them from ex-
cluding the Media.
Fla. Rules of Criminal Procedure 3.220 (d) required
that the Procedure for taking depositions shall be the
same as that provided in the Fla., Rules of Civil Proce-
dure. The Rules of Civil Procedure 1.30 allow for depo-
sitions to be taken without leave of the Court. While
attendance of witnesses may be compeled by subpoena,
it is not necessarily a Judicial Proceedings. The deposi-
tions taken by the Plaintiff and Defendant in a civil case
and the State and the Defendant in an criminal case are
primarily investigatory tools, and are not subject to the
same public scrutiny as are Judicial Proceedings. In the
instant case, if the State and the Defendant agree to talk
to a witness who volunteers to meet with them, it would
seem to be extremely burdensome upon them to have
to notify the Media of what, when and where, these con-
versations are to take place. Once these conversations
are reduced to writing and filed with the Clerk’s Office,
of course, they become a matter of Public record.
The Sixth Amendment (6th) to the United State
Constitution requires, that,
“In all Criminal Prosecutions, the accused shall en-
joyed the right to a speedy and public trial---.”
Obviously, the plain intent of the Constitutional Amend-
ment is to give the accused a right, should he so desire.
to a public trial. It seems that if he understands that
he has the right and wishes to waive it, he ought to
A63
have the right to do so, as was stated in the case of
GANNETT CO. V. DePASQUALE, 443 U.S. 368 (1979)
The Court held:
“that the Sixth Amendment’s guarantee to the ac-
cused of a public trial gave neither the public nor
the press an enforceable right of access to pre-trial
Suppression hearing.”
The Court finds that the defendant in this case has
a right to waive her Sixth Amendment rights under the
U.S. Constitution, as they relate to Nen-Judicial deposi-
tions. Of course, the Media must be allowed to attend,
the Court Ordered depositions, or depositions held in the
public facilities of the Palm Beach County Courthouse.
In order to further protect the record however, the Court
is going to prohibit the destruction or editing of any depo-
sitions taken, without order of the Court. IT IS THERE-
UPON ORDERED:
1. The defendant and the State Attorney’s Office will
not be required to notify the News Media of its
intent to take statements, either under oath or not
under oath, where Judicial process is not involved,
other than issuing a subpoena.
2. IT IS FURTHER ORDER: that the State and
Defense is prohibited from destroying depositions
taken and typed up in this case without further
order of this Court.
3. IT IS FURTHER ORDERED: that where notice
of depositions are required to be filed and are filed,
they must be taken in a place which will admit
access to the public and the press.
A64
DONE AND ORDERED IN CHAMBERS this 18th day
of January, 1983, at West Palm Beach County, Florida.
/s/ Edward Rodgers
Edward Rodgers, Circuit Judge
Copies Furnished:
State Attorney
Clerk’s Office, Criminal Division
Ferrero, Middlebrooks, & Strickland, P.A.
P.O. Box 14604
707 S.E. Third Avenue
Ft. Lauderdale, Florida
A65
(SEAL)
LEWIS KAPNER
Chief Judge
Fifteenth Judicial Circuit of Florida
County Court House
West Palm Beach, Florida 33401
305/437-8581
MEMO
TO: JOHN DUNKLE CLERK OF COURT
FROM: CHIEF JUDGE LEWIS KAPNER
DATE: FEBRUARY 3, 1982
RE: RULE 1.310(f)(3)(A) FILING OF
DEPOSITIONS
Rules 1.310(f)(3)(A); 1.340 and 1.350, effective Jan-
uary 1, 1982, provide that copies of depositions, completed
interrogatories and documents in response to requests for
production are to be filed only when they should be
considered by the court. This determination should be
decided by the judge hearing the case. Accordingly,
please do not accept any such papers for filing except
by court order. If an attorney wishes to file a deposition,
interrogatory, or other such document, please suggest that
the attorney bring the document to the hearing or trial
so that the judge can determine whether it should be
filed.
LK: mcb
xe: All Judges
Robert Horey
Helen Perry
Ted Deckert
Catherine Royce*
* Please publish in the next issue of the Bar Bulletin.
A66
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO. 82-5858 CF
Judge Edward Rodgers
STATE OF FLORIDA,
Plaintiff,
VS.
LINDA AURILIO,
Defendant.
ORDER
(December 8, 1982)
THIS CAUSE having come on to be heard on STATE
OF FLORIDA’s Motion for Protective Order to limit per-
sons to be present at discovery depositions, and to ex-
clude others, including the media and the public in gen-
eral, from access to pre-trial depositions taken and/or to
be taken in the above captioned action, and the Court
having heard argument of counsel, and being otherwise
fully advised in the premises, it is thereupon
ORDERED and ADJUDGED that the STATE OF
FLORIDA’s Motion for Protective Order to exclude the
media from access to pre-trial depositions taken and/or
to be taken in the above captioned action be and the
same is hereby denied without prejudice.
A67
DONE and ORDERED in Chambers at West Palm
Beach, Palm Beach County, Florida on this 8th day of
December, 1982.
/s/ Edward Rodgers
Circuit Judge
Copies Furnished:
CARL D. WEINBERG, ESQUIRE
ANDREW M. KLYMAN, ESQUIRE
WILTON L. STRICKLAND, ESQUIRE
A69
MIAMI HERALD PUBLISHING CO. v. HAGLER
TABLE OF CONTENTS
Miami Herald Publishing Company v. Hagler, 506 So.2d
1037 (Fla. 1987)
Miami Herald Publishing Company v. Hagler, 471 So.2d
1344 (Fla. 4th DCA 1985)
Order (September 12, 1983)
A70
MIAMI HERALD PUBLISHING COMPANY, et al.,
Petitioners,
v.
John W. HAGLER, et al., Respondents.
No. 67479.
Supreme Court of Florida.
May 7, 1987.
Application for Review of the Decision of the District
Court of Appeal—Direct Conflict of Decisions, Fourth
District—Case No. 83-2062.
Richard J. Ovelmen, Gen. Counsel, The Miami Herald
Pub. Co., Miami, Parker D. Thomson, Sanford L. Bohrer
and Jerold I. Budney of Thomson, Zeder, Bohrer, Werth,
Adorno & Razook, Miami, and Laura Besvinick of Greer,
Homer, Cope & Bonner, Miami, for Miami Herald Pub. Co.
Donald M. Middlebrooks, L. Martin Reeder, Jr. and
Thomas R. Julin of Steel, Hector & Davis, Miami, for
Palm Beach Newspapers, Inc.
Nelson E. Bailey, West Palm Beach, for John W.
Hagler.
Robert A. Butterworth, Atty. Gen., and Louis F.
Hubener, Asst. Atty. Gen., Tallahassee, for the State.
Dan Paul and Franklin G. Burt of Paul and Burt,
Miami, and George H. Freeman, Legal Dept., New York
Times, New York City, for amici curiae, Gainesville Sun
OF a ame ad Fe —
A771
Pub. Co., Lake City Reporter, Inc., Lakeland Ledger Pub.
Corp., Leesburg Daily Commercial, Inc., Ocala Star-Banner
Corp., The Palatka Daily News, Inc., The New York
Times Co., Fernandina Beach News-Leader, Inc., and
Sebring News-Sun, Inc.
PER CURIAM.
This case, Miami Herald Publishing Co. v. Hagler,
471 So.2d 1344 (Fla. 4th DCA 1985), is one of a series
of cases presenting issues which were certified as ques-
tions of great public importance by Palm Beach News-
papers, Inc. v. Burk, 471 So.2d 571 (Fla. 4th DCA 1985).
We tentatively accepted jurisdiction to ensure consistency
of decisions. Our decision in Palm Beach Newspapers,
Inc. v. Burk, 504 So.2d 378 (Fla.1987), answering the
certified questions and affirming the court below obviates
jurisdiction. We deny the petition for review.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW,
GRIMES and KOGAN, JJ., concur.
i
3
A72
The MIAMI HERALD PUBLISHING COMPANY and
Palm Beach Newspapers, Inc., Petitioners,
V.
John W. HAGLER and the State of Florida,
Respondents.
No. 83-2062.
District Court of Appeal of Florida,
Fourth District.
June 26, 1985.
Rehearing Denied July 24, 1985.
On petition for writ of certiorari to the Circuit Court
for Palm Beach County; Carl H. Harper, Judge.
L. Martin Reeder, Talbot D’Alemberte, and Thomas
R. Julin of Steel, Hector & Davis; and Richard J. Ovelmen,
General Counsel, The Miami Herald Publishing Company,
Miami, for petitioners.
Nelson E. Bailey, West Palm Beach, for respondent
Hagler.
Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann,
Asst. Atty. Gen., West Palm Beach, for respondent State
of Florida.
PER CURIAM.
The order of September 12, 1983, is affirmed on the
authority of Palm Beach Newspapers, Inc. v. Burk, 471
So.2d 571 (Fla. 4th DCA 1985).
DELL and WALDEN, JJ., concur.
BARKETT, J., concurs specially with opinion.
A73
BARKETT, Judge, concurring specially.
I concur because of the binding precedent of Palm
Beach Newspapers v. Burk, 471 So.2d 571 (Fla. 4th DCA
1985), although I think the correct view in this case is
expressed by the dissents in Burk. The unique facts of
this case underscore the reasoning in those dissents. Here,
the State Attorney of the Fifteenth Judicial Circuit of
Florida, David Bludworth, was deposed pursuant to Rule
3.220(d), Florida Rules of Criminal Procedure, in a pend-
ing criminal case at the request of the criminal defendant,
John Hagler. Bludworth became a witness in the case
as a result of the defendant’s allegations that the defendant
was entrapped into selling cocaine when he offered to sell
allegedly compromising photographs of the State Attorney.
No written notice of the deposition was filed because the
State and the defense lawyer had agreed to take the depo-
sition “in secret” and not to order or file the transcript.
Among other claims, the defendant’s attorney had sug-
gested the State Attorney had a conflict of interest while
continuing to prosecute the case.
As is noted in Judge Hurley’s dissent in Burk, a major
policy reason for open proceedings in the courts is “the
public’s right to monitor the functioning of our courts,
thereby ensuring quality, honesty, and respect for our
legal system.” In the Matter of Continental Illinois Se-
curities Litigation, 732 F.2d 1302, 1308 (7th Cir.1984).
Agreements to bypass the rules, and to take secret depo-
sitions of the State Attorney in a pending criminal case
prosecuted by the same State Attorney’s office, are much
more prone to ensure speculation and distrust rather than
to ensure confidence in our legal system.
A74
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
- CRIMINAL DIVISION
CASE NO. 82-3750 CF A 02 U
STATE OF FLORIDA
VS.
JOHN WILLIAM HAGLER,
Defendant
ORDER DENYING MOVANTS’ MOTIONS
(September 12, 1983)
The “Motion to Release Transcript of Secret Deposi-
tion to the Press and Public and to Require Future Depo-
sitions to be Open Unless Ordered Closed by the Court”
was filed on September 2, 1983 on behalf of Mike Boehm,
reporter for the Miami Herald, the Miami Herald Pub-
lishing Company and Palm Beach Newspapers, Inc. (here-
inafter referred to as the movants). Courtesy copies
thereof, including the iegal authories relied upon, had
been furnished to the court on September 1, 1983. In
opposition thereto, on September 6, 1983, a “Motion to
Dismiss or Strike Pleading and Memorandum of Law” was
filed on behalf of the defendant herein, John William
Hagler, and a Motion to Strike Pleadings was filed on be-
half of the State of Florida. The matter came on for hear-
ing on the 8:45 A.M. calendar as set by the movants and
was duly reported. Inasmuch as the essential facts are
not in dispute and the issues involve only questions of law,
no testimony or other evidence was presented or required.
The court heard the arguments of respective counsel and
A75
had already reviewed the authorities relied upon by the
movants. The court denied the motion filed by the movants
pending entry of this written order. Thereafter, on Sep-
tember 8, 1983 the movants filed a “Motion for Reconsid-
eration” and a separate “Motion for Order to Require Court
Reporter to Type and File Deposition Transcript”, noticing
the latter motion for hearing on the 8:45 A.M. calendar
scheduled for September 13, 1983 without leave of court.
It is also noted that all but the latter motion are incor-
rectly styled “Civil Division” by the movants’ counsel.
As noted above, the essential facts are not in dispute.
On August 29, 1983, David H. Bludworth, State Attorney
of the Fifteenth Judicial Circuit of Florida, personally
appeared before Michael Greenhill, Court Reporter, and
gave his discovery deposition pursuant to Rule 3.220(d)
at the behest of the defendant, John William Hagler. No
written notice of the taking of the deposition had been
filed as contemplated by Rule 3.220(d) inasmuch as the
State and the defense had mutually scheduled the deposi-
tion without compliance with the written notice require-
ment. Neither the State nor the defense have requested
the court reporter to type the deposition transcript. Both
the State and the defense announced at the hearing that
they did not intend to do so because Mr. Bludworth is not
listed as a potential witness and will not be called to
testify in the defendant’s criminal trial scheduled before
this court, and therefore the so-called “secret” deposition
would not be needed or used by either party. Upon learn-
ing of the taking of the Bludworth deposition, the movants
requested the court reporter to type the transcript at their
cost, but the request was denied. The State and the de-
fense have refused to authorize the court reporter to do
so as well. Consequently, the Bludworth deposition has
not been filed in the court file.
A76
The movants contend that the procedure surrounding
the taking of Mr. Bludworth’s deposition violates the Flor-
ida Rules of Criminal Procedure and Administrative Order
No. 1.010 dated February 15, 1980; and further violates
their “First Amendment and Florida Common Law rights
to attend judicial proceedings”.
Based on a review of the pleadings referred to here-
inabove, the authorities relied upon by the parties herein
in support of and in opposition to the relief sought, and
upon due consideration of the arguments of respective
counsel, it is:
ORDERED AND ADJUDGED as follows:
1. The movants do not have standing to complain
as to the alleged violation of Rule 3.220(d) relating to dis-
covery depositions. The Rule expressly provides, among
other things,
‘“... The party taking the deposition shall give written
notice to each other party. The notice shall state the
time and place the deposition is to be taken and the
name of each person to be examined... Any deposi-
tion taken pursuant hereto may be used by any party
for the purpose of contradicting or impeaching the
testimony of the deponen* as a witnes. The trial court
or its clerk shall, upon application, issue subpoenas
for the persons whose depositions are to be taken. . .”
(emphasis mine)
Clearly the movants are not parties to the criminal case
pending between the State of Florida and the defendant.
John William Hagler. Rule 3.220(d) confers certain
rights and duties upon the parties of a criminal case in
order to accommodate an orderly preparation for trial.
Of course, the lawyers in a criminal case have the right
AT77
and are encouraged to waive the notice requirements of
the Rule. See for example the Code of Professional
Responsibility, Canon 7, EC 7-38 which reads in part:
“A lawyer should be courteous to opposing counsel
and should accede to reasonable requests regarding
court proceedings, setting, continuances, waiver of
procedural formalities, and similar matters which do
not prejudice the rights of his client.” (emphasis
mine)
The Rule does not confer rights upon the general public
or its alter-ego, the press. To give the notice require-
ments of Rule 3.220(d) the broad construction desired
by the movants would literally make the press an indis-
pensable party in every stage of a criminal case and would
run counter to Rule 3.020 which states:
“These rules are intended to provide for the just
determination of every criminal proceeding. They
shall be construed to secure simplicity in procedure
and fairness in administration.”
The notice requirements of Rule 3.220(d) are not intended
to assist the press in a witch hunt or to satisfy press
curiosity. Lawyers must remain free to investigate and
prepare their client’s case without unnecessary, unreason-
able intrusion and interference by the public and press.
The movants’ reliance on Rule 1.080(d) as it relates
to the filing of papers with the court is misplaced and
misses the target. That Rule requires that “all original
papers shall be filed with the court either before service
or immediately thereafter”. It does not require that a
subpoena must be issued to a witness who agrees to vol-
untarily appear for deposition without a subpoena. It
A78
merely requires that if a subpoena is served on a witness,
the original subpoena must be filed.
2. The reliance of the movants on Administrative
Order No. 1.010 is likewise misplaced. The administrative
order provides:
“A motion to limit or prohibit public access to Court
proceedings and a notice of hearing concerning the
motion shall be served upon all parties and upon all
media organizations that have filed a completed ‘Re-
quest for Notification’ with the Clerk’s office. . .”
By its clear meaning, the order governs motions to pro-
hibit public access, to court proceedings, i.e. closure.
Neither the State nor the defendant herein filed a motion
to prohibit access to taking of the deposition and no
court order of closure was ever entered. Therefore, there
has been no restraint of the movants’ First Amendment
rights. Furthermore, as will be noted hereinafter, the
mere taking of a discovery deposition pursuant to Rule
3.220(d) is not a “court proceeding” or judicial proceeding
to which the public and/or the press has an unqualified
right to attend.
3. The contention of the movants that the taking of
a discovery deposition in a criminal case pursuant to
Rule 3.220(d) is a “judicial proceeding” to which the
public and/or the press has an unqualified right to attend
is erroneous as this court opined in footnote 1 of an order
entered in Pulitzer v. Pulitzer more than a year ago
(August 24, 1982), a copy of which has been provided
to all counsel herein. This court is still of the firm opinion
that the taking of discovery depositions (in criminal or
civil cases) is not a “judicial proceeding” to which the
public and/or press is entitled to prior notice and to
A79
attend as a matter of absolute right. This court’s opinion
is supported by the dicta in Tallahassee Democrat, Inc.
v. Willis, 370 So.2d 867 (1979), where it was stated in
footnote 4 at page 872:
‘“.. . the taking of a deposition itself can hardly be
categorized as a judicial proceeding for the simple
reason that there is no judge present, and no rulings
nor adjudications of any sort are made by any judi-
cial authority. . .”
That appellate court held that discovery depositions once
filed in the court file become a public record of a court,
accessible to the public, absent a proper court order on
a case by case basis sealing the deposition. See also
Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367 (5 DCA
1980), wherein that appellate court directly concluded on
page 1371:
“We therefore conclude that the press does not have
the absolute right to attend the taking of a deposition,
that its presence may be regulated by the court under
Rule 1.280(c), but that once the deposition is taken,
transcribed and filed in the court file, there is a right
of access to it unless a protective order is entered
by the court under tne said rule”,
certifying the issue to the Florida Supreme Court. Un-
fortunately, the Supreme Court has not ruled thereon.
For analogous authority see also State v. Dolen, 390 So.2d
407 (5 DCA 1980), wherein that appellate court held
that even the accused defendant in a criminal case does
not have an absolute right to attend the taking of a dis-
covery deposition in his own case taken pursuant to Rule
3.220(d) stating at page 409:
A80
“The scope of the ‘trial’ has not been extended to
discovery depositions as they are not true judicial
proceedings”,
citing Tallahassee Democrat, Inc. v. Willis, supra. If the
taking of a discovery deposition is not a “judicial pro-
ceeding” to which an accused defendant has an absolute
right to attend, does counsel for the movants seriously
contend that the press enjoys such an absolute right?
The movants do not enjoy a right of access superior to
that of the public merely because the movants claim
to be “the watch dog and ultimate guarantor of the fair-
ness and accountability of our judicial system” as stated
in their Motion for Reconsideration. See Garrett v.
Estelle, 558 F.2d 1274 (5th Cir. 1977), and United States
v. Gurney, 558 F.2d 1202 (5th Cir. 1977). Freedom of
the press is not and has never been a private property
right granted to those who own the media. State ex rel.
Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904,
910 (Fla. 1977). |
None of the appellate court decisions cited by the
movants’ counsel have held that the taking of discovery
depositions is a judicial proceeding to which the public
and/or the press has an absolute right to attend. On
the contrary, those cases deal with closure of trials or
with prior restraints on what can be published by the
press, and are therefore readily distinguishable. As to
the circuit court opinions cited by movants’ counsel in
support of the motion, this court must respectfully dis-
agree insofar as they ruled that the mere taking of depo-
sitions is a judicial proceeding to which the public and
press has a right to attend. This court is of a different
legal opinion, and more importantly this court is bound
by the appellate decisions in Tallahassee Democrat, Inc.
A8l
v. Willis; Ocala Star Banner Corp. v. Sturgis; and State
v. Dolen, supra as required by State v. Hayes, 333 So.2d
51 (4 DCA 1976), since there is no contrary holding by
the Fourth District Court of Appeal or Supreme Court
of Florida.
Rule 2.070(j), Florida Rules of Judicial Administra-
tion, states as follows:
“Transcripts of all judicial proceedings, including
depositions, shall be uniform in and for all courts
throughout the state.”
That Rule does not define “judicial proceedings” to include
depositions, but merely requires that all transcripts thereof
shall be uniform. Black’s Law Dictionary, Fourth Edition,
defines “judicial proceeding” as:
“Any proceeding wherein judicial action is invoked
and taken; any proceeding to obtain such remedy as
the law allows; any step taken in a court of justice
in the prosecution or defense of an action.”
Judge Learned Hand, in Doe v. Rosenberry, 255 F.2d 118
(2nd Cir. 1958) stated that:
“‘Judicial proceeding’ includes any proceeding de-
terminable by a court, having for its object the com-
pliance of any person, subject to judicial control, with
standards imposed upon his conduct in the public in-
terest, even though such compliance is enforced with-
out the procedure applicable to the punishment of
crime.” Id. at page 120.
Accordingly, the Motion to Release Transcript of the
Bludworth deposition is denied.
4. To the extent that the movants seek to require
“that all future depositions to be open unless ordered
A82
closed by the court”, the motion is likewise denied for the
reasons stated above. !
5. The Motion for Reconsideration filed on behalf of
the movants is summarily denied. The numerous sta-
tistical reports and news articles attached thereto have
no legal relevance or probative value as to whether the
taking of discovery depositions is a judicial proceeding to
which the mvants had a right to attend. This court has
spent many hours considering the issues raised herein
and on similar issues raised in prior cases, and in prepara-
tion of this written order. No useful purpose would be
served at a rehearing even though the issue is raised with
recurring frequency in high profile cases. Instead, this
court would encourage the movants to pursue the issue
where it counts, namely appellate review in the Fourth
District Court of Appeal in an effort to resolve the time-
consuming question with binding, controlling case law,
settling the troublesome issue once and for all. There
should be uniformity among the trial court judges. Speak-
ing for myself, I welcome some guidance from the Fourth
District Court of Appeal since I seem to be in the minority
among my colleagues on the subject.
6. The movants’ “Motion for Order to Require Court
Reporter to Type and File Deposition Transcript” is like-
wise denied summarily. Rule 1.310(f) (2), Florida Rules
of Civil Procedure, expressly provides:
“Upon payment of reasonable charges therefor the
officer shall furnish a copy of the deposition to any
party or to the deponent”,
and that Rule is applicable in criminal cases as well by
virtue of Rule 3.220(d). Since the movants are not parties
or deponents in this criminal case, they have no standing
to require the court reporter to type and file the Bludworth
A83
transcript. Nevertheless, in an effort to preserve the status
quo pending an appellate resolution of the issues herein,
if any, this court hereby orders the court reporter, Michael
Greenhill, to safely preserve his original notes of the
Bludworth deposition until further order of this court or
of the Fourth District Court of Appeal.
In closing, this Order should not be construed as any
restraint upon the movants to pursue their First Amend-
ment freedoms through the use of their broad investigative
powers and resources, but without the benefit of the Blud-
worth deposition. If and when that deposition is used in
a court hearing or trial, or is filed with the Clerk of this
court, it will then become a public record of this court,
readily accessible to the public, unless sealed by an ap-
propriate court order after full compliance with Admin-
istrative Order 1.010 and a showing of “good cause’ as
required by State v. Newman, 405 So.2d 971 (Fla. 1981)
and meeting the three prong test of Palm Beach News-
papers, Inc. v. Nourse, 413 So.2d 467 (4 DCA 1982).
DONE AND ORDERED this 12th day of September,
1983 at West Palm Beach, Palm Beach County, Florida.
/s/ Carl H. Harper
Carl H. Harper. Circuit Judge
Copy to:
State Attorney
Nelson Bailey, Esq.
L. Martin Reeder, Esq.
A85
PALM BEACH NEWSPAPERS, INC. v. STATE
TABLE OF CONTENTS
Palm Beach Newspapers, Inc. v. State, 506 So.2d 1037
(Fla. 1987)
State v. Freund, 473 So.2d 274 (Fla. 4th DCA 1985)
Order (February 22, 1985)
A86
PALM BEACH NEWSPAPERS, INC.,
et al., Petitioners.
Vv.
STATE of FLORIDA, Respondent.
No. 67482.
Supreme Court of Florida.
May 7, 1987.
Application for Review of the Decision of the District
Court of Appeal—Direct Conflict of Decisions, Fourth Dis-
trict—Case No. 85-687.
Donald M. Middlebrooks, L. Martin Reeder, Jr., Thomas
R. Julin and Joan H. Lowenstein of Steel, Hector and Davis,
Miarmi, for Palm Beach Newspapers, Inc. and Scripps-
Howard Broadcasting Co.
Ray Ferrero, Jr., Wilton L. Middlebrooks and Ricki
Tannen of Ferrero, Middlebrooks, Strickland & Fischer,
P.A., Fort Lauderdale, for News and Sun-Sentinel Co.
Richard J. Ovelmen, Gen. Counsel, The Miami Herald
Pub.Co., Miami, Bruce W. Greer, Gerald B. Cope, Jr. and
Laura Besvinick of Greer, Homer, Cope & Bonner, P.A.,
Miami, and Sanford Bohrer and Jerold I. Budney of Thom-
son, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for
the Miami Herald Pub. Co.
Pablo Perhacs, Asst. State Atty., Fifteenth Judicial
Circuit, West Palm Beach, for respondent.
A87
PER CURIAM.
This case, State v. Freund, 473 So.2d 274 (Fla. 4th DCA
1985), is one of a series of cases presenting issues which
were certified as questions of great public importance by
Palm Beach Newspapers, Inc. v. Burk, 471 So.2d 571 (Fla.
4th DCA 1985). We tentatively accepted jurisdiction to
ensure consistency of decisions. Our decision in Palm
Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987),
answering the certified questions and affirming the court
below obviates jurisdiction. We deny the petition for re-
view.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW,
GRIMES and KOGAN, JJ., concur.
A88
STATE of Florida, Petitioner,
Vv.
John S. FREUND, John Trent, Palm Beach Newspapers,
Inc., Scripps-Howard Broadcasting Company, Miami Her-
ald Publishing Company, and the Fort Lauderdale News
and Sun Sentinel, Respondents.
No. 85-687.
District Court of Appeal of Florida,
Fourth District.
July 31, 1985.
On petition for writ of certiorari from the Circuit
Court, Palm Beach County, Marvin Mounts, Jr., J., the
District Court of Appeal held that trial court erred in
permitting media attendance at pretrial depositions in a
criminal proceeding.
Writ issued.
Letts, J., concurred specially with opinion.
Criminal Law (Key) 635
Trial court erred in permitting media attendance at
pretrial depositions in criminal proceeding.
Pablo Perhacs. Asst. State Atty., West Palm Beach.
for petitioner.
seis
A89
L. Martin Reeder, Jr., D. Culver Smith, III, and
Thomas R. Julin of Steel Hector Davis Burns & Middleton,
Palm Beach, for respondents—Palm Beach Newspapers
and Scripps-Howard Broadcasting.
Janice Burton Sharpstein and Laura Besvinick of
Sharpstein & Sharpstein, P.A., Coconut Grove, and Richard
J. Ovelmen, Gen. Counsel, Miami for respondent—Miami
Herald.
Ray Ferrero, Jr. of Ferrero, Middlebrooks & Strick-
land, Fort Lauderdale, for respondents—Fort Lauderdale
News and Sun Sentinel.
PER CURIAM.
The trial court permitted media attendance at pre-
trial depositions in a criminal proceeding pursuant to our
sister court’s holding in Short v. Gaylord Broadcasting
Co., 482 So.2d 591 (Fla. 2d DCA 1981). Since then this
court announced its en banc decision in Palm Beach News-
papers, Inc. v. Burk, 471 So.2d 571 (Fla. 4th DCA 1985),
which takes the opposite view from Short and which
must govern the case at bar. Accordingly, we grant the
writ and quash the trial court’s order on the authority
of our en banc decision in Burk.
WRIT ISSUED.
HERSEY, C.J., and HURLEY, J., concur.
LETTS, J., concurs specially with opinion.
LETTS, Judge, specially concurring.
I agree that Burk, supra, governs this case. How-
ever, while considering the particular matter now before
us, I realize that the statement by the Florida Supreme
Court in Miami Herald Publishing Co. v. Lewis. 426 So.2d
A90
1 (Fla.1982), that “[t]here is no first amendment pro-
tection of the press’ rights to attend pretrial hearings”
is suspect, if it relies, as it appears to, on Gannett Co.
v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608
(1979). If the Florida court continues to be of the same
mind when it addresses the issue of pretrial depositions,
it should not, as I did in Burk when I quoted Lewis,
rely on Gannett. The Gannett decision, while admittedly
equivocal, is clarified in a later United States Supreme
Court case where it is confirmed that the media has in
fact a “qualified” first amendment right to attend pre-
trial suppression hearings. Waller v. Georgia, ........ USS.
anes , 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).
I would also certify this particular case. True, to
do so should be an unnecessary exercise because of Jollie
v. State, 405 So.2d 418 (Fla.1981). However, the issue
is certainly of great public importance, the certification
has been requested, and it makes it that much easier
for the litigants if we do so.
A91
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT OF FLORIDA IN
AND FOR PALM BEACH COUNTY,
FLORIDA
CRIMINAL DIVISION
CASE NO. 84-4974 CF A and B 02
STATE OF FLORIDA
vs.
JOHN S. FREUND and
JOHN TRENT,
Defendants.
ORDER
(February 22, 1985)
This matter is before the Court on the State’s Re-
sponse to Oral Motion of Defense to Compel Deposition
Testimony; State’s Motion for Protective Order and State’s
Motion to Require News Media Representatives to Demon-
strate the Existence of a Right for Them and the Public
to be Present During a Discovery Deposition.
The State is represented by Assistant State Attorney
Pablo Perhacs; the news media intervenors are repre-
sented by Attorney Martin Reeder, Jr. Also participating
at various times have been Assistant State Attorney Jorge
Labarga, the prosecutor in the case and Attorneys Douglas
Duncan for defendant Freund and David Roth for defen-
dant Trent.
— RULING —
The State’s Motions are denied.
A92
— DISCUSSION —
Neither defendant objects to the media being present
although defendant Freund indicated a desire to reserve
his right to petition for a change of venue.
It is interesting to observe that the role positions
are switched in this particular legal issue because ordi-
narily it is the defense who is concerned about keeping
the alleged facts of the case out of the media so that
prospective jurors will not be tainted with preconceived
notions about the state of the case.
The State represented that they desired a precise
ruling as to whether or not a deposition is a judicial pro-
ceeding. That ruling is unnecessary in light of Short v.
Gaylord Broadcasting Co., 2nd DCA Case Number 84-2576,
10 FLW 257 (Feb. 1, 1985). I note parenthetically, how-
ever, that I recede from my decision in an earlier case
that a deposition is a judicial proceeding.
At the initial emergency hearing in this matter, It
was represented by the State that the media should be
excluded because of the great havoc and emotional strain
that their presence would work upon the several wit-
nesses, one of whom was a police officer. The State has
withdrawn this assertion.
As I indicated gratuitously in both hearings, I would
think that the State ordinarily would want to take ad-
vantage of such an opportunity if only for the purpose
of familiarizing its witnesses with the atmosphere of the
courtroom; a dress rehearsal so to speak, to prepare them
for the eventual trial.
In any event, it seems clear to me that I am bound
by the Gaylord decision. As that decision points out,
A93
the situation occurring here is governed by Florida Rule
of Civil Procedure 1.280(c) which provides for protective
orders. As the Court indicates at page 258: “This rule
gives the trial court control over who may or may not
attend depositions; the court’s discretion is limited only
by the standard ‘for good cause shown’. The Rule places
the burden of obtaining a protective order on the person
or party seeking to limit attendance at a deposition.”
It is represented to the Court that when these depo-
sitions were scheduled, the attorneys and witnesses were
greeted by a television camera erected at close proximity
to the witness chair and several reporters for other media
interests. The place of the deposition had been trans-
ferred from the small and typical deposition room into
the larger area of a courtroom.
Lawyers and judges are deeply concerned about the
access of the public and the media to depositions, in my
opinion. As pointed out by the State in its brief, (citing
footnote number 4 from Tallahassee Democrat v. Willis,
370 So.2d 867, 870 (1st DCA 1979)), depositions very
often contain matters that are not and can never be
considered as evidence, since the scope of inquiry on
depositions is not limited as in examination of a witness
in a judicial proceeding. Persons not even parties to the
case are often compelled under process of law to divulge
information that is not intended for use as evidence, but
merely to elicit or lead to information that might explain
other evidence or become admissible as evidence.
Indeed, the whole corpus of the law of evidence gov-
erning trials is directed to one goal: reliability and trust-
worthiness. We lawyers and judges know that even
under the protection of these copious rules of evidence,
reliability and trustworthiness are elusive qualities in
A94
the best of trials. The rules encouraging reliability do
not apply at depositions even though the witness is under
oath.
The press already has the right to quote from depo-
sitions with complete immunity from lawsuit unless the
plaintiff can establish actual malice. To quote a hearsay
rumor in copy that describes it as a judicial proceeding
under oath is an opportunity to do grave damage to the
reputations of individuals. I think it unlikely that we
can expect the media to quote from a deposition and
then qualify it by explaining that depositions contain
some inadmissible and unreliable matters. For that is
tantamount to saying what we just printed may be un-
true or unprovable.
Moving on to the last matter of concern, it is directed
that the attorneys arrange for access of the media to these
depositions in the same fashion as is provided in an actual
judicial proceeding.
DONE AND ORDERED at West Palm Beach, Palm
Beach County, Florida, in chambers this 22nd day of
February, 1985.
/s/ Marvin Mounts, Jr.
Marvin Mounts, Jr., Circuit Judge
copies furnished counsel
A95
CONSTITUTIONAL PROVISIONS AND RULES
TABLE OF CONTENTS
United States Constitution, Amendment I
United States Constitution, Amendment XIV, Section !
Rule 3.220, Florida Rules of Criminal Procedure
Rule 1.280(c), Florida Rules of Civil Procedure
Rule 1.310(f) and (g). Florida Rules of Civil Procedure
Rule 1.080(d), Florida Rules of Civil Procedure
A96
UNITED STATES CONSTITUTION, AMENDMENT I
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
UNITED STATES CONSTITUTION, AMENDMENT
XIV, SECTION 1
SECTION 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of cit-
izens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due pro-
cess of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
RULE 3.220, FLORIDA RULES OF
CRIMINAL PROCEDURE
VI. DISCOVERY
Rule 3.220. Discovery
(a) Prosecutor’s Obligation.
(1) After the filing of the indictment or infor-
mation, within fifteen days after written demand
by the defendant, the prosecutor shall disclose to
defense counsel and permit him to inspect, copy, test
A97
and photograph, the following information and mate-
rial within the State’s possession or control:
(i) The names and addresses of all persons
known to the prosecutor to have information
which may be relevant to the offense charged,
and to any defense with respect thereto.
(ii) The statement of any person whose
name is furnished in compliance with the pre-
ceding paragraph. The term “statement” as used
herein means a written statement made by said
person and signed or otherwise adopted or ap-
proved by him, or a stenographic, mechanical,
electrical, or other recording, or a transcript there-
of, or which is a substantially verbatim recital
of an oral statement made by said person to an
officer or agent of the State and recorded con-
temporaneously with the making of such oral
statement, provided, however, if the court deter-
mines in camera proceedings as provided in sub-
section (i) hereof that any police report contains
irrelevant, sensitive information or information
interrelated with other crimes or criminal activ-
ities and the disclosure of the contents of such
police report may seriously impair law enforce-
ment or jeopardize the investigation of such other
crimes or activities, the court may prohibit or
partially restrict such disclosure. The court shall
prohibit the State from introducing in evidence
the material not disclosed, so as to secure and
maintain fairness in the just determination of the
cause.
(iii) Any written or recorded statements
and the substance of any oral statements made
A98
by the accused, including a copy of any state-
ments contained in police reports or report sum-
maries, together with the name and address of
each witness to the statements.
(iv) Any written or recorded statements
and the substance of any oral statements made
by a co-defendant if the trial is to be a joint one.
(v) Those portions of recorded grand jury
minutes that contain testimony of the accused.
(vi) Any tangible papers or objects which
were obtained from or belonged to the accused.
(vii) Whether the State has any material
or information which has been provided by a
confidential informant.
(viii) Whether there has been any elec-
tronic surveillance, including wiretapping, of the
premises of the accused, or of conversations to
which the accused was a party; and, any doc-
uments relating thereto.
(ix) Whether there has been any search or
seizure and any documents relating thereto.
(x) Reports or statements of experts made
in connection with the particular case, including
results of physical or mental examinations and
of scientific tests, experiments or comparisons.
(xi) Any tangible papers or objects which
the prosecuting attorney intends to use in the
hearing or trial and which were not obtained
from or belonged to the accused.
(2) As soon as practicable after the filing of
the indictment or information the prosecutor shall
A99
disclose to the defense counsel any material infor-
mation within the State’s possession or control which
tends to negate the guilt of the accused as to the
offense charged.
(3) The prosecutor shall perform the foregoing
obligations in any manner mutually agreeable to him
and defense counsel or as ordered by the court.
(4) The court may deny or partially restrict
disclosures authorized by this Rule if it finds there
is a substantial risk to any person of physical harm,
intimidation, bribery, economic reprisals, or unnec-
essary annoyance or embarrassment resulting from
such disclosure, which outweighs any usefulness of
the disclosure to defense counsel.
(5) Upon a showing of materiality to the prep-
aration of the defense, the court may require such
other discovery to defense counsel as justice may
require.
(b) Disclosure to Prosecution.
(1) After the filing of the indictment or infor-
mation and subject to constitutional limitations, a
judicial oificer may require the accused to:
(i) Appear in a line-up;
(ii) Speak for identification by witnesses to
an offense;
(iii) Be fingerprinted;
(iv) Pose for photographs not involving re-
enactment of a scene;
(v) Try on articles of clothing;
A100
(vi) Permit the taking of specimens of ma-
terial under his fingernails;
(vii) Permit the taking of samples of his
blood, hair and other materials of his body which
involves no unreasonable intrusion thereof;
(viii) Provide specimens of his handwriting;
and
(ix) Submit to a reasonable physical or medi-
cal inspection of his body.
(2) Whenever the personal appearance of the
accused is required for the foregoing purposes, rea-
sonable notice of the time and place of such appear-
ance shall be given by the prosecuting attorney to
the accused and his counsel. Provisions may be made
for appearances for such purposes in an order ad-
mitting the accused to bail or providing for his pre-
trial release.
(3) Within seven days after receipt by defense
counsel of the list of names and addresses furnished
by the prosecutor pursuant to Section (a)(1)(i) of
this Rule the defense counsel shall furnish to the
prosecutor a written list of all witnesses whom the
defense counsel expects to call as witnesses at the
trial or hearing. When the prosecutor subpoenas a
witness whose name has been furnished by defense
counsel, except for trial subpoenas, reasonable notice
shall be given to defense counsel as to the time and
place of examination pursuant to the subpoena. At
such examination, defense counsel shall have the right
to be present and to examine the witness.
(4) If the defendant demands discovery under
Section (a) (1) (ii), (x), (xi) of this Rule, the defen-
A101
dant shall disclose to the prosecutor and permit him
to inspect, copy, test and photograph, the following
information and material which corresponds to that
which the defendant sought and which is in the de-
fendant’s possession or control:
(i) The statement of any person whom the
defendant expects to call as a trial witness other
than that of the defendant.
(ii) Reports or statements of experts made
in connection with the particular case, including
results of physical or mental examinations and
of scientific tests, experiments or comparisons.
(iii) Any tangible papers or objects which
the defense counsel intends to use in the hearing
or trial.
Defense counsel shall make the foregoing disclosures within
fifteen days after receipt by him of the corresponding dis-
closure from the prospector. Defense counsel shall per-
form the foregoing obligations in any manner mutually
agreeable to him and the prosecutor; or as ordered by the
court.
The filing of a motion for protective order by the
prosecutor will automatically stay the times provided for
in this section. If a protective order is granted, the de-
fendant may, within two days thereafter, or at any time
before the prosecutor furnishes the information or ma-
terial which is the subject of the motion for protective
order, withdraw his demand and not be required to furnish
reciprocal discovery.
A102
(c) Matters Not Subject to Disclosure.
(1) Work Product. Disclosure shall not be re-
quired of legal research or of records, correspondence,
reports or memoranda, to the extent that they con-
tain the opinions, theories, or conclusions of the prose-
cuting or defense attorney, or members of his legal
staff.
(2) Informants. Disclosure of a confidential in-
formant shall not be required unless the confidential
informant is to be produced at a hearing or trial, or
a failure to disclose his identity will infringe the con-
stitutional rights of the accused.
(d) Discovery Depositions.
(1) At any time after the filing of the indictment
or informatoin the defendant may take the deposition
upon oral examination of any person who may have
information relevant to the offense charged. The depo-
sition shall be taken in a building where the trial
may be held, such other place agreed upon by the
parties or where the trial court may designate by
special or general order. The party taking the depo-
sition shall give reasonable written notice to each
other party. The notice shall state the time and place
the deposition is to be taken and the name of each
person to be examined. After notice to the parties
the court may, for good cause shown, extend or shorten
the time and may change the place of taking. Except
as provided herein, the procedure for taking such depo-
sition, including the scope of the examination, shall
be the same as that provided in the Florida Rules of
Civil Procedure. Any deposition taken pursuant
hereto may be used by any party for the purpose of
A103
contradicting or impeaching the testimony of the de-
ponent as a witness. The trial court or its clerk shall,
upon application, issue subpoenas for the persons whose
depositions are to be taken. In any case, including
multiple defendant or consolidated cases, no person
shall be deposed more than once except by consent
of the parties, or by order of the court issued upon
good cause shown. A resident of the State may be
required to attend an examination only in the county
wherein he resides, or is employed, or regularly trans-
acts his business in person. A person who refuses to
obey a subpoena served upon him may be adjudged in
contempt of the court from which the subpoena issued.
(2) No transcript of a deposition for which a
county may be obligated to expend funds shall be
ordered by a party unless it is: (a) agreed between
the State and any defendant that the deposition should
be transcribed and a written agreement certifying
that the deposed witness is material or specifying
other good cause is filed with the court, or (b) ordered
by the court upon a showing that the deposed witness
is material or upon showing of good cause. This rule
shall not apply to applications for reimbursement of
costs pursuant to Florida Statute 939.06 and Article I
Section 9 of the Florida Constitution.
(e) Investigations Not to Be Impeded. Except as
is otherwise provided as to matters not subject to dis-
closure or restricted by protective orders, neither the
counsel for the parties nor other prosecution or defense
personne! shall advise persons having relevant material
or information (except the accused) to refrain from dis-
cussing the case with opposing counsel, or showing oppos-
ing counsel any relevant material, nor shall they otherwise
impede opposing counsel’s investigation of the case.
A104
(f) Continuing Duty to Disclose. If, subsequent to
compliance with the rules, a party discovers additional
witnesses or material which he would have been under a
duty to disclose or produce at the time of such previous
compliance, he shall promptly disclose or produce such wit-
nesses or material in the same manner as required under
these rules for initial discovery.
(g) Court May Alter Times. The court may alter
the times for compliance with any discovery under these
rules upon good cause shown.
(h) Protective Orders. Upon a showing of cause,
the court may at any time order that specified disclosures
be restricted or deferred, or make such other order as is
appropriate, provided that all material and information to
which a party is entitled must be disclosed in time to
permit such party to make beneficial use thereof,
(i) In Camera Proceedings. Upon request of any
person, the court may permit any showing of cause for
denial or regulation of disclosures, or any portion of such
showing to be made in camera. A record shall be made
of such proceedings. If the court enters an order grant-
ing the relief following a showing in camera, the entire
record of such showing shall be sealed and preserved in
the records of the court, to be made available to the ap-
pellate court in the event of an appeal.
(j) Sanctions.
(1) If, at any time during the course of the pro-
ceedings, it is brought to the attention of the court
that a party has failed to comply with an applicable
discovery rule or with an order issued pursuant to an
applicable discovery rule, the court may order such
party to comply with the discovery or inspection of
materials not previously disclosed or produced, grant
A105
a continuance, grant a mistrial, prohibit the party
from calling a witness not disclosed or introducing in
evidence the material not disclosed, or enter such other
order as it deems just under the circumstances.
(2) Willful violation by counsel of an applicable
discovery rule, or an orde: issued pursuant thereto,
may subject counsel to appropriate sanctions by the
court.
(k) Costs of Indigents. After a defendant is ad-
judged insolvent, the reasonable costs incurred in the
operation of these rules shall be taxed as costs against the
county.
(1) Pre-trial Conference. The trial court may
hold one or more pre-trial conferences, with trial counsel
present, to consider such matters as will promote a fair
and expeditious trial. The accused shall be present unless
he waives this in writing. Amended Feb. 10, 1977, effective
July 1, 1977 (343 So.2d 1247); July 18, 1980, effective Jan.
1, 1981 (389 So.2d 610); Nov. 26, 1986 (498 So.2d 875).
RULE 1.280(c), FLORIDA RULES OF
CIVIL PROCEDURE
Rule 1.280. General Provisions Governing Discovery
* * *
(c) Protective Orders. Upon motion by a party
or by the person from whom discovery ‘is sought, and
for good cause shown, the court in which the action is
pending may make any order to protect a party or person
from annoyance, embarrassment, oppression, or undue
burden or expense that justice requires, including one
A106
or more of the following: (1) that the discovery not
be had; (2) that the discovery may be had only on spec-
ified terms and conditions, including a designation of the
time or place; (3) that the discovery may be had only
by a method of discovery other than that selected by the
party seeking discovery; (4) that certain matters not be
inquired into, or that the scope of the discovery be limited
to certain matters; (5) that discovery be conducted with
no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only
by order of the court; (7) that a trade secret or other
confidential research, development, or commercial infor-
mation not be disclosed or be disclosed only in a desig-
nated way; (8) that the parties simultaneously file speci-
fied documents or information enclosed in sealed envelopes
to be opened as directed by the court. If the motion for
a protective order is denied in whole or in part, the court
may, on such terms and conditions as are just, order
that any party or person provide or permit discovery.
The provisions of Rule 1.380(a)(4) apply to the award
of expenses incurred in relation to the motion.
RULE 1.310(f) AND (g), FLORIDA RULES
OF CIVIL PROCEDURE
Rule 1.310. Depositions Upon Oral Examination
a * +
(f) Filing; Exhibits.
(1) If transcribed, the officer shall certify on
each copy of the deposition that the witness was
duly sworn by him and that the deposition is a true
record of the testimony given by the witness. Doc-
A107
uments and things produced for inspection during
the examination of the witness shall be marked for
identification and annexed to and returned with the
deposition upon the request of a party, and may be
inspected and copied by any party, except that the
person producing the materials may substitute copies
to be marked for identification if he affords to all
parties fair opportunity to verify the copies by com-
parison with the originals. If the person producing
the materials requests their return, the officer shall
mark them, give each party an opportunity to inspect
and copy them, and return them to the person pro-
ducing them and the materials may then be used in
the same manner as if annexed to and returned with
the deposition.
(2) Upon payment of reasonable charges there-
for the officer shall furnish a copy of the deposition
to any party or to the deponent.
(3) A copy of a deposition may be filed only:
(A) By a party or the witness when the
contents of the deposition must be considered by
the court on any matter pending before the court.
Prompt notice of the filing of the deposition shall
be given to all parties unless notice is waived.
A party filing the deposition shall furnish a copy
of the deposition cr the part being filed to other
parties unless the party already has a copy.
(B) If the court determines that a deposi-
tion previously taken is necessary for the decision
of a matter pending before the court, the court
may order that a copy be filed by any party at
the initial cost of the party.
A108
(g) Obtaining Copies. A party or witness who
does not have a copy of the deposition may obtain it
from the officer taking the deposition unless the court
orders otherwise. If the deposition is obtained from a
person other than the officer, the reasonable cost of
reproducing the copies shall be paid to the person by
the requesting party or witness.
RULE 1.080(d), FLORIDA RULES OF
CIVIL PROCEDURE
Rule 1.080. Service of Pleadings and Papers
» *
(d) Filing. All original papers shall be filed with
the court either before service or immediately thereafter.
If the original of any bond or other paper is not placed in
the court file, a certified copy shall be so placed by the
clerk.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.