# Appendix — Miami Herald Publishing Publishing Publishing Co. v. Burk (Nos. 87-508, 87-507) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2371%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 ## 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 basi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2371%3A2. Public record. Not legal advice.