Tallahassee Democrat, Inc. v. Willis, NN-314

• Decision Date: 17 May 1979
• Docket Number: No. NN-314,NN-314
• Citation: 370 So.2d 867
• Parties: 5 Media L. Rep. 1022 The TALLAHASSEE DEMOCRAT, INC. and Florida Publishing Company, Publisher of the Florida Times-Union at Jacksonville, Florida, Petitioners, v. The Honorable Ben C. WILLIS, Circuit Judge for the Second Judicial Circuit of Florida, in and for Leon County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 867

370 So.2d 867

5 Media L. Rep. 1022

The TALLAHASSEE DEMOCRAT, INC. and Florida Publishing Company, Publisher of the Florida Times-Union at Jacksonville, Florida, Petitioners, v. The Honorable Ben C. WILLIS, Circuit Judge for the Second Judicial Circuit of Florida, in and for Leon County, Florida, Respondent.

No. NN-314.

District Court of Appeal of Florida, First District.

May 17, 1979.

C. Gary Williams, DuBose Ausley, Michael Pearce Dodson, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee and Harold B. Wahl, of Wahl & Gabel, Jacksonville, Dan P. S. Paul, of Paul & Thomson, Miami, for petitioners.

Jim Smith, Atty. Gen. and George R. Georgieff, Asst. Atty. Gen., for respondent.

LARRY G. SMITH, Judge.

We have before us for review Administrative Order 79-17 entered by the Honorable Ben C. Willis, Chief Judge, Second Judicial Circuit. Jurisdiction is vested in this court by Rule 9.100(d), Fla.R.App.P. ¹

The order, entitled, "In Re: Sealing of Deposition Transcriptions in Civil and Criminal Cases", reads as follows (omitting formal parts):

"It has come to the attention of this office that when depositions have been transcribed in criminal and civil cases the transcription is historically and routinely filed in the official court file where they are subject to review and copy by anyone. This procedure can affect the right to a fair trial by either party if the transcriptions are allowed to be open for public inspection prior to the conclusion of the proceeding.

"In the Florida Rules of Court, 1979, Rule 1.310, Rules of Civil Procedure, Depositions Upon Oral Examination, provides in subsection (f)(1) as follows:

'If transcribed, the officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk for filing.'

"Subsection (f)(2) provides as follows:

'Upon payment of reasonable charges therefor the officer shall furnish a copy of the deposition to any party or to the deponent.'

"In the Rules of Criminal Procedures, Rule 3.220(d), Discovery Depositions, states in part:

'. . . Except as provided herein, the procedure for taking such depositions, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure.'

"Rule 3.190(j)(5), Rules of Criminal Procedure, states:

'Except as otherwise provided, the rules governing the taking and filing of oral depositions, the objections thereto, the issuing, execution and return of the commission and the opening of the depositions in civil actions shall apply in criminal cases.'

"In compliance with the Florida Rules of Court as heretofore mentioned, it is therefore

"ORDERED AND ADJUDGED that duly certified transcripts of all depositions shall, in accordance with the above rules, be securely sealed in an envelope endorsed with the title of the action and marked 'Deposition of (here insert the name of witness)' and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk for filing. Such depositions then become subject to unsealing only by direction of the court in which the action is pending.

"This Order shall take effect immediately.

"DONE AND ORDERED in Chambers at Tallahassee, Florida, this 16th day of March, 1979.

" D O

BEN C. WILLIS,

CHIEF JUDGE"

It is clear that the Chief Judge interpreted the language of Rule 1.310(f)(1) that the officer taking the deposition shall "securely seal" the deposition prior to the filing with the clerk as if the rule required the deposition to Remain sealed after filing. We might be inclined to agree except for other provisions of the rules relating to depositions which we feel must be considered in Pari materia in order to determine the intent and purposes of the quoted provision.

Petitioners contend, and we agree, that this particular language governs the transmittal of and not access to depositions. They refer us to Rule 30, Fed.R.Civ.P., which contains operative language virtually identical with the Florida rule under discussion. The Federal rules provides:

"(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked 'Deposition of (here insert name of witness)' and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing." (Rule 30, Fed.R.Civ.P.)

Wright and Miller, in their work "Federal Rules of Civil Procedure", Volume 8, Section 2119, state in relation to this rule (page 438):

". . . Upon filing the deposition should be immediately opened by the clerk, and made available for public inspection, unless the court has made a protective order that the deposition remain sealed."

In Section 2042 of the same work (Volume 8, Federal Practice and Procedure) we find the further statement (page 298):

". . . Ordinarily a deposition is a public document freely open to inspection after it is filed with the clerk. . . ."

Since the Florida rules were modeled in large part after the Federal rules, interpretations of comparable Federal rules have often been adopted by the courts of Florida.

We turn next to Rule 1.400, Fla.R.C.P., "Depositions Deemed Published When Filed" which provides:

"Upon the filing of any deposition or affidavit taken under any rule or statute it shall be deemed published, unless otherwise ordered by the court, and may be opened and examined by any party in the presence of the clerk. The clerk may unseal the deposition and file it with other papers in the court file."

Administrative Order 79-17 directly conflicts with Rule 1.400, because it requires the deposition to remain sealed, subject to direction of the court, whereas, the rule promulgated by the Florida Supreme Court allows the clerk to unseal the deposition and file it with other papers in the court file. We also find the language of the rule explicit in its direction that the deposition "shall be deemed Published, unless otherwise ordered by the court" (emphasis supplied). We think this portion of the rule makes it clear that access is prohibited only if ordered by the court. We note that the District Court of Appeal, Second District of Florida, has placed this interpretation upon the rule in Tibado v. Brees, 212 So.2d 61 (Fla. 2nd DCA 1968). In that case the question arose whether Mr. Tibado had waived his claim of privileged communication between husband and wife by giving his deposition. In answering this question the court stated:

"It should also be noted that Mr. Tibado's deposition was filed with the clerk of the circuit court and therefore under Rule 1.400 R.C.P. was deemed published as there was no order of the court to the contrary. Having been deemed published the communications between Mr. Tibado and his wife became public and therefore the justification for the privilege ceased. . . ." (212 So.2d at page 63)

Our conclusion that a deposition is open for inspection by the public and the press when filed is strengthened by the provision of the rules governing protective orders. Rule 1.280(c) "Protective Orders", provides in part:

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: . . . (6) that a deposition after being sealed be opened only by order of the court; . . ." (Rule 1.280(c) Fla.R.C.P.)

If, as respondent contends, the rules require a deposition to be sealed unless ordered opened by the court, Rule 1.280(c) would be something of an anomaly in that it would require a person seeking protection under the rule to file a motion and show good cause in order to receive a court order requiring that to be done which respondent contends the rule requires to be done in the first instance.

Discovery depositions are also provided for by the Rules of Criminal Procedure. Under Rule 3.220(d), Fla.R.Cr.P., the "procedure" for taking depositions, and the "scope of examination" shall be the same as that provided in the Florida Rules of Civil Procedure. We conclude that protective orders may be entered by the court under Rule 1.280(c) in criminal as well as civil cases. Additional provision for protective orders in criminal cases is provided by Rule 3.220(h), allowing restriction or deferment of disclosures. Under Rule 3.220(i) In camera proceedings may be held by the court for the purpose of permitting any person to show cause for denial or regulation of disclosures. In such event, a record shall be made of the proceeding, and the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

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 Fla.R.C.P.). 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 deposition. The protection of litigants' right to a fair trial as well as protection of other recognized rights may be sought and accomplished under the rules, ² but we determine that the rules...