Appellate Practice: Filing Documents Under Seal In Appellate Proceedings

By Jessica Dareneau

Failing to ensure that sensitive information is not filed publicly could result in irreparable harm. Despite broad sunshine laws, Florida law protects social security numbers, medical records, trade secrets, and other private and sensitive information. See Fla. R. Jud. Admin. 2.420(c)(9). Before the electronic age, such documents would simply be filed in a sealed envelope. Since the implementation of mandatory electronic filing, however, the written procedures don’t quite mesh with filing realities. Thus, it is critical for the filing attorney to ensure such information is not inadvertently made available to the world for review. Do not wait until the deadline to file your brief because it will likely take some time to ensure that information is filed under seal. 

James Birkhold, clerk of the Second District Court of Appeal, has provided some helpful guidance for attorneys wishing to file documents under seal in the Second District. 

In proceedings involving review of a final order, the lower court clerk prepares the record and is responsible for informing the district court clerk of any sealed information contained in the record pursuant to Rule 2.420(g)(8). Issues for attorneys will mainly arise in the review of non-final orders because the attorney must prepare an appendix. If there is already an order from the lower court sealing the information, then isolate the information you are seeking to seal from the other documents in the appendix. Next, alert the appellate court of the lower court’s order sealing the information. This can be accomplished by selecting the confidential option in the e-portal and then filing the information with a cover letter with bold and large font stating that the document must be sealed. The cover letter should cite to the lower court’s order sealing the information, and the order should be attached. 

If there is not already an order from the lower court sealing the information, then you will need to file a motion with the appellate court under Rule 2.420(g), Florida Rules of Judicial Administration. This rule sets forth strict parameters for sealing information in the court’s file. 

Do not file your sensitive information until the district court has ruled on your motion to seal. If the court grants your motion, a separate appendix should be prepared with the sealed information. If the confidential information is of a nature that the other side should be restricted from accessing it as well, do not electronically file the sealed appendix because it will be electronically served on the opposing party automatically. Clerk Birkhold suggests instead filing a motion in which you request court approval to email the district clerk the confidential portion of the appendix.  

The electronic filing system is evolving and will eventually have a method to replace the traditional sealed envelope method. Until then, it is always best to contact the clerk of the district in which you are filing well before the filing deadline for guidance, as each district will likely have different methods and preferences. 

A Legacy That Lasts: George E. Edgecomb

By Cory J. Person

“Good friend, in the path I have come,” he said,
“There followed after me today
A youth whose feet must pass this way.
This chasm that has been as naught to me
To that fair-haired youth may a pitfall be;
He, too, must cross in the twilight dim;
Good friend, I am building this bridge for him!”
― from “The Bridge Builder” by Will Allen Dromgoole

In Florida, one becomes accustomed to the sight of bridges. Indeed, bridges are everywhere across our fair state, allowing travelers to cross expanses of water, vast or small, to arrive at our intended destination. Rarely noticed or noted are those who came before to build the bridge, across which so many have traveled. Every so often, however, a bridge is built so exceedingly well that its builder must be etched in history. Such is the case of the late Honorable George E. Edgecomb. 

A native of West Tampa, Edgecomb graduated from George S. Middleton High School with honors in 1960, where he served as president of the student body. Leadership would be a theme of Edgecomb’s life, both as a student and law professional. 

After high school, Edgecomb attended Clark College in Atlanta, where he served as president of the freshman class, sophomore class, and ultimately president of the student body. It was during this time that he met Tampa attorney Delano S. Stewart. 

“I did not know George at the time, but my parents knew of him and asked that I find George when I started classes at Morehouse,” Stewart says. Taking his parents advice, Stewart sought out Edgecomb, and the two established an enduring friendship. 

“God creates people for a purpose. He [Edgecomb] was president of the freshman class, sophomore class, and the student body president for two years. He was respected and admired by his peers. He was destined to do what he did swiftly – that was his destiny,” Stewart says.

The destiny Stewart refers to began in 1968, when Edgecomb received his Juris Doctorate degree from Howard University School of Law. After graduation, Edgecomb returned to Tampa and began his legal career as an attorney working with Stewart. 

Edgecomb did not consider his only obligation as that owed to his clients; he felt a great obligation to serve his community. Accordingly, he served on the Greater Tampa Urban League Board of Directors and received multiple awards for his service to the Tampa’s underserved communities. 

On August 13, 1973, George Edgecomb was invested as a county judge, becoming the first African-American judge in Hillsborough County. He was also the first African-American chief assistant county solicitor and Hillsborough County’s first African-American assistant state attorney. 

Judge Edgecomb passed away on January 22, 1976. In 1982, Judge Edgecomb’s friends and colleagues created the George Edgecomb Bar Association (GEBA) to preserve his legacy. Today, GEBA boasts a membership of more than 100 lawyers, judges, and law students. 

Though I began practicing law 30 years after Judge Edgecomb’s passing, I have walked across the bridge that he and other trailblazers have built. I have been a member of GEBA since I arrived in Tampa in 2006; I was sworn in as a lawyer at the George E. Edgecomb Courthouse. It is likely that the view and capacity of African-American lawyers in our community have been shaped, in part, by Judge Edgecomb’s varied accomplishments in the legal profession. 

There is no doubt that any success I and other African-American lawyers may claim would not be possible without the planks that were laid down, the towers that were erected, and the cables that were suspended by the late Honorable George E. Edgecomb.

News From Around The Association

Erin Smith Aebel of Shumaker, Loop & Kendrick, LLP, has received the American Diabetes Stop Diabetes SHARE Leadership Award. The award recognizes an individual volunteer who has demonstrated a significant and ongoing ability to recruit, train, and motivate local volunteers. Aebel is a partner at the firm and the co-chair of the Tampa Health Law Department.

Carter Andersen, shareholder at Bush Ross, P.A., has been reappointed to the Thirteenth Circuit Judicial Nominating Commission. Andersen's practice includes civil litigation matters in both state and federal courts and in alternative dispute resolution settings, including arbitration and mediation.

Adam L. Bantner II of the Brandon Legal Group has been elected to the Board of Directors of the Greater Brandon Chamber of Commerce. Bantner practices criminal defense, personal injury, and immigration law.

Edward J. Carbone of Roig Lawyers presented the Medical Malpractice Update Course to insurance adjusters at the Division of Rehabilitation and Liquidation for the State of Florida on October 15. Carbone specializes in medical malpractice, health care law, appellate litigation, and business litigation.

Michael L. Forte of Rumberger, Kirk & Caldwell, P.A., recently presented "Public Records and Sunshine Law" to a gathering of police chiefs from the Tampa Bay area. Forte has also been named a "40 under 40 Up & Comer" by the Tampa Bay Business Journal. Forte is a litigator who practices in the areas of retail and hospitality, government, and products liability.

Erica Gooden and Alyse Latour have joined Holland & Knight as associates. Gooden practices commercial litigation and dispute resolution, and Latour practices securities law.

Rachel B. Goodman of Shumaker, Loop & Kendrick, LLP, spoke to the Professional Association of Healthcare Office Management on September 17. Rachel’s topic was “Health Law 101: The Basics Your Doctors Need to Know to Protect Their License and Liberty.” Goodman practices health law at the firm.

Lee D. Gunn IV, founder and president of Gunn Law Group, was the 20th recipient of the Florida Justice Association’s EAGLE Centurion Award. Participants in EAGLE (the Endowment for Association Giving to Law and Education) have become leaders and advocates for public service, setting an example and leaving their mark by protecting access to Florida’s courts. The Centurion Award recognizes those who have contributed $250,000 to the Endowment for Association Giving to Law and Education.

Jason F. Lamoureux of Holland & Lamoureux, P.A., presented "How to Preserve a Constitutional Challenge to the Threshold Defense" at the Florida Justice Association's Masters of Justice Auto Negligence Seminar in Orlando on September 19.

M. Elizabeth “Liz” Lanier has joined Gunn Law Group’s litigation team. Lanier focuses her practice on medical malpractice, nursing home liability, and serious personal injuries.

Jordan D. Maglich, an attorney with Wiand Guerra King, was recently appointed to serve on the Editorial Board of the Federal Bar Association.

Judge Stevan Northcutt, of the Second District Court of Appeal, recently exhibited "CorgiModern," his series of photographs juxtaposing cardigan Welsh corgis with mid-century-modern furniture, in a gallery show at Beth Kokol Arts in Tampa.

W. Jan Pietruszka, partner at Shumaker, Loop & Kendrick, LLP, was a panelist at the Accounting & Financial Women’s Alliance group on October 24 at International Plaza, where he discussed navigating effective performance reviews to avoid HR and legal issues. Pietruszka's practice includes defending corporations and management from claims of discrimination, sexual harassment, workplace torts, breaches of employment contract, and unpaid wages.

William K. “Bill” Thomas has joined Hill International Inc. as vice president of its Claims & Consulting Group. Thomas focuses his practice on forensic accounting and fraud investigations both in and outside of the construction industry.

Burton W. Wiand, a founding member of Wiand Guerra King P.L., was elected to the Board of Directors of the National Association of Federal Equity Receivers. Wiand has served as an equity receiver on numerous occasions, having been appointed at the suggestion of the SEC, FTC, and also in state court by the Florida Office of Financial Regulation.

Gregory C. Yadley, partner at Shumaker, Loop & Kendrick, LLP, has been reappointed to serve as a member of the U.S. Securities and Exchange Commission’s Advisory Committee on Small and Emerging Companies. Yadley was also acknowledged by the American Bar Association in Chicago for his service as chairman for the past three years of the ABA Business Law Section Middle Market and Small Business Committee. Yadley practices corporate and securities law at the firm.

Second DCA Judicial Nominating Commission Accepting Judicial Applications

The Second District Court of Appeal Judicial Nominating Commission has announced a vacancy due to the retirement of Judge Charles A. Davis Jr. The Judicial Nominating Commission has been asked to provide Gov. Rick Scott with nominees for this vacancy.

Qualifications of Applicants:

Applicants must be residents of the territorial jurisdiction of the court at the time they would assume office, electors of the state of Florida, and members of The Florida Bar for the preceding 10 years.

Instructions for Submission:

1. Current Judicial Applications must be used and can be downloaded in Word version from The Florida Bar’s website at www.flabar.org.
2. The completed application must be typed and bound. The inclusion of a photograph is encouraged.
3. In addition to the original application, applicants must provide: (i) 10 copies of the original application, (ii) one electronic copy of the original application on a flash drive in PDF format, and (iii) one printed redacted copy excluding all exempt information under Chapter 119 of the Florida Statutes or other applicable public records law. All printed copies should be two-sided.
4. The completed application, attachments, and flash drive must be delivered to Lara J. Tibbals, chair of the Second District Court of Appeal Judicial Nominating Commission, 101 E. Kennedy Blvd., Suite 3700, Tampa FL 33602.
5. The deadline for submission of the application is 5 p.m. Friday, January 30. Applications submitted after the deadline will not be considered.

Additional Information:

After the deadline for submitting applications, the commission will determine which applicants to interview. Applicants will be contacted to confirm the date, time, and location.

All proceedings of the commission are open to the public except for deliberations. Applicants should not expect their applications to be kept confidential.

If an applicant is nominated, all materials attached to the original application will be submitted to the governor.

A list of members of the Second District Court of Appeal Judicial Nominating Commission is available from The Florida Bar’s website.

Members of the bench, the Bar and the public are urged to contact the members of the commission concerning applicants for judicial positions.

If you have any questions, please call Mrs. Tibbals at (813) 222-8501. 

Dash And Then Dine At The 5K And Pig Roast On March 21

By 5K Pro Bono River Run Committee

The countdown has begun for the Seventh Annual HCBA 5k Pro Bono River Run on Saturday, March 21! Get ready for a fantastic family-friendly event. The event has grown by leaps and bounds over the past few years and will be open to the first 350 people who register.  

The River Run is well-suited for everyone from casual walkers to elite runners, featuring professional chip timing, a USTAF-certified course, a water station, and the glorious Hillsborough River! Race day check-in begins at 4 p.m. at the Chester H. Ferguson Law Center, and the race begins promptly at 5:30 p.m. Check-in will also be available at the Ferguson Law Center on from 9 a.m. to 6 p.m. Friday, March 20. You can register for the 2015 River Run through the HCBA website. Early registration for the race will end March 5. The early registration fee is $35 for adults and $15 for youths (ages 12 and younger).

More importantly, we hope to better the 1,672 pro bono service hours that were pledged last year. Pro bono service is at the heart of this race and provides a tremendous service to the many people in our community who do not have the funds needed to obtain legal representation.  In addition to runners who are pledging hours, we are hoping to get others in our legal profession to support the race by pledging their own pro bono hours on behalf of a runner. This gives everyone a great opportunity to support the race in a very meaningful way, even if running 3.1 miles is not high on your “to-do” list.   

After the River Run, please stay for the Judicial Pig Roast/Food Festival on the grounds of Stetson University’s Tampa Law Center. You can expect to enjoy delicious food, an abundance of fun, and even a little dancing. The Pig Roast is free for HCBA members and their families.  

Not a runner or walker? You can still get involved by volunteering or sponsoring the event. Last year, we had more than 60 volunteers. Please contact Laura Westerman Tanner at ltanner@burr.com if you are interested in volunteering. You can sponsor the River Run or the Pig Roast through a financial contribution or an in-kind donation for the goody bags. If you wish to be a sponsor, please visit the HCBA website for a form or contact Corrie Benfield at corrie@hillsbar.com or (813) 221-7779.

So, grab your sneakers and come on downtown for an exciting race, a fun afternoon, and a chance to support pro bono legal services! We hope to see you there!

State Attorney's Message: Investigative Subpoenas - A Tool For Prosecution

By Mark A. Ober

“In the criminal justice system, the people are represented by two separate yet equally important groups:  the police, who investigate crime; and the district attorneys, who prosecute the offenders.”  This clear-cut distinction is well-known to anyone who has ever watched the opening sequence of an episode of “Law & Order.” Of course, in real life, this distinction is not always so clear. Although law enforcement completes the bulk of every criminal investigation, it may be necessary for the state to conduct a follow-up investigation with witness interviews.  

Under section 27.04, Florida Statutes, the state attorney is empowered to summon witnesses “to testify before him or her as to any violation of the law.” This statute is very broad and allows the state to conduct an investigation to determine whether criminal activity has occurred. State v. Investigation, 802 So. 2d 1141, 1144 (Fla. 2d DCA 2001). The state may exercise this power through a subpoena for the testimony of live witnesses or through the use of a subpoena duces tecum. See id. at 1143-1144; Doe v. State, 634 So. 2d 613, 615 (Fla.1994); Imparato v. Spicola, 238 So. 2d 503, 506 (Fla. 2d DCA 1970); State v. Nat'l Research Sys., Inc., 459 So. 2d 1134, 1135 (Fla. 3d DCA 1984); Op. Att'y Gen. Fla. 94-86 (1994). An assistant state attorney is authorized to administer oaths to these witnesses, § 27.04, Fla. Stat., and law enforcement may be present for a witness interview pursuant to this section. In re Getty, 427 So. 2d 380 (Fla. 4th DCA 1983). No right to counsel attaches to such an interview, See State v. Sievert, 312 So. 2d 788 (Fla. 2d DCA 1975); Gordon v. Gerstein, 189 So. 2d 873 (Fla. 1966).,  although an attorney for the witness may be present if he or she does not interfere with the investigation. Creamer v. State, 447 So. 2d 978 (Fla. 1st DCA 1984). If the state has served a subpoena on a witness to testify as part of an investigation, section 914.04 may be triggered, providing the witness with immunity for statements made in response to the subpoena. Immunity would not extend to any perjured testimony provided by the witness. See State v. Mitrani, 19 So. 3d 1065, 1067 (Fla. 5th DCA 2009; Fowler v. State, 447 So. 2d 296 (Fla. 2d DCA 1984).

In my office, my attorneys conduct in-person witness interviews with victims of violent felony offenses. These witnesses receive a subpoena to appear at our Victim Assistance Program, where they are placed under oath and interviewed by an assistant state attorney about the facts of the case. Not only does this interview give us an opportunity to learn about the case and assess our witness’ ability to testify, but it also gives the witness an opportunity to ask questions about the court process and provide input about future dispositions. 

To keep the citizens of Hillsborough County safe, my attorneys take the legal actions necessary to assess and build strong cases. In conjunction with the hard work done by our law enforcement partners, my investigative authority through the use of subpoena powers allows my office to pursue justice for the people of Hillsborough County.  

President's Message: A Continued Commitment To Diversity

By Benjamin H. Hill IV

As the holidays and 2014 are now but a memory, I hope everyone is well underway to a healthy and prosperous new year. I know many have made resolutions for the year, and I wish you much success in fulfilling them.* Although it is a new calendar year, we are entering the second half of our Bar year, with much work and fun still before us. We have a lot of positive momentum at the halfway mark, but we still have many aspects of Operation Respect and Service ― our themed mission for the year ― to advance. So, what’s next?

I now want to lift up the increasing diversity within our local Bar and profession. In doing so, I only hope to continue the great work that my predecessor, Susan Johnson-Velez, so capably led in highlighting this important subject. As the HCBA continues its growth, so does the diversity of our membership. To be sure, the diversity within our Bar increasingly reflects the diversity within our area, state, and country. As this diversity evolves, we acknowledge both the progress that has been made and the positive impact it has had on our local Bar, profession, and community. As we all know and cherish, our heritage within our local community is richly and inextricably intertwined with great diversity. Of course, this is part of what makes this area we call “home” such a great place in which to live and work.

In this issue, we spotlight diversity through, among other things, a wonderful article in which HCBA Secretary Cory Person remembers the Honorable George E. Edgecomb and his enduring legacy. We also showcase our local legal profession’s significant Hispanic roots and ties via Luis Viera’s well-written article featuring the Tampa Hispanic Bar Association. The HCBA values, and benefits from, the strong and collaborative relationship it has with our smaller but no less important local voluntary bar associations such as the Hillsborough Association for Women Lawyers, GEBA, THBA, and various others too numerous to mention.

Our next General Membership Luncheon on January 22 will also be devoted to diversity. In keeping with our lineup of diverse speakers this year, we are very excited to welcome Paulette Brown as our guest. Ms. Brown currently serves as ABA president-elect and will soon be the first African-American woman to serve as ABA president. If you have not already done so, please register for this event.

Then, on Saturday, February 21, our HCBA Diversity Committee ― led by superstar Co-Chairs Amanda Buffinton and Jessica Goodwin Costello ― will host the Diversity Networking Social at the Chester H. Ferguson Law Center. This event will provide law students from across the state with opportunities to meaningfully interact with lawyers and others working within Tampa Bay’s legal market. It aims to connect these students with potential mentors from local firms and area voluntary bar associations and to educate them on the professional development opportunities available in our area.

In resolving to kick off 2015 by continuing our Bar’s strong commitment to diversity, we simultaneously advance another key component of Operation Respect and Service. Indeed, diversity remains a vital part of our Bar’s mission “to inspire and promote respect for the law and the justice system through service to the legal profession and to the community.”

*Note: Although I have not been a consistent setter of New Year’s resolutions, I did commit this year to run the Gasparilla half-marathon on February 22. I will be running in support of Hope For The Warriors, one of this year’s official charity partners of Gasparilla Distance Classic. If you would like information about this wonderful organization and its mission, please visit www.hopeforthewarriors.org. If you would like to join me and other lawyers on a team in support of Hope For The Warriors, email me at ben.hill4@hwhlaw.com.