Published: March 2025

The Florida Supreme Court’s new Differentiated Case Management “time standards” (deadlines) (Rule 2.250(a)(1)(B), Fla. R. Gen. Prac. & Jud. Admin.)  mandate procedures to expedite preparation for trial in civil cases. To facilitate compliance with that rule, our Chief Judge Glenn Kelley has promulgated Administrative Order 3.110.

When a deposition cannot be taken because opposing counsel has filed Motions for Protective Orders invoking privilege, irrelevancy, etc. against the first attorney’s discovery requests, that deposition must await rulings on the motions, which often require hearings.  Given the overloaded dockets of our Circuit Civil Judges, this can take months.  And now, the Board of Governors of the Florida Bar is advocating the promulgation of new discovery rules providing for sanctions for lawyers who do not meet the deadlines!

What to do?   Fortunately, there is an answer. You and opposing counsel can file a Joint Motion for Appointment of a Special Magistrate. Fla. R. Civ. P.  1.490(b) authorizes the court to appoint a Special Magistrate (no longer called a Special Master) “for any particular service required by the court.” (Note: the court may not appoint a Special Magistrate unless the parties agree.)

The Special Magistrate will hold hearings on discovery issues and file his/her Report and Recommendations with the court.  Within 10 days, either party may file Exceptions to any of the recommendations; the opposing party may, within five days after the Exceptions are filed, file an opposing brief or Cross-Exceptions to the Magistrate’s Report.  Often, if the Report and Recommendations contain citations to law supporting each recommendation, and the Exceptions do not negate those citations, the Court will readily adopt them.   A Special Magistrate may help to speed discovery and trial preparation in other ways as well, as by being appointed to conduct an in camera document review, or to preside at depositions to rule on objections to discovery, maintain order, etc.

Any member of the Florida Bar may be appointed to serve as a Special  Magistrate. Many attorneys prefer to use retired Judges, because they know the reputation of each for fairness, intellect and other qualities desired in a Special Magistrate.  “Upon a showing that the appointment is advisable [e.g., where technical expertise is required], a person other than a member of the Bar may be appointed.”  Rule 1.490(b).

If your opposing counsel agrees to use a Special Magistrate, you should file a Joint Motion for appointment of a Special Magistrate, with a proposed Order making the appointment. The Motion should state that the parties agree not only to the appointment of a Special Magistrate, but to the appointment of a specific person named in the motion.  If you cannot agree on who should be appointed, your joint motion should ask the Court to name at least three persons and require the parties to agree on one.  Both counsel should consult with the prospective appointee to ascertain his/her hourly rate, which should be noted in the Order of appointment.

Your proposed Order must specify the matters being referred to the Magistrate.  If the court’s Order of Referral contains issues which you did not consent to being heard by the Special Magistrate,  you must object before the date the Magistrate has set for the hearing. If you object to the referral and your objection is denied, you may petition the Court of Appeal for either a writ of mandamus or a writ of prohibition. If, during the hearing, the Special Magistrate should address something not contained in the order of referral, you should immediately object on the record;  you may then participate in the hearing, and your objection will be honored by the trial court or, if not, by the appellate court.

Sometimes, the mere filing of the Special Magistrate’s Report and Recommendations will result in the parties’ agreeing on resolving the motions before the Court can address them, or even to the case settling.  In one notable case in this Circuit, the attorneys were unable to take crucial depositions because the predicate discovery requests to obtain background information on the deponents were met with objections on the grounds of privilege, irrelevance, etc.  The attorneys were told by the Judge that she could not resolve all the pending discovery disputes for at least 12 or 14 months.  Counsel jointly moved for the appointment of a Special Magistrate, which the Court granted.  The Special Magistrate held two full days of hearings, some with testimony, and issued a detailed 51-page Report and Recommendations.  The case settled before the Judge could address the R&R, which may be seen on the Clerk’s website as: Weiss Research, Inc. v. Finest Known, LLC, et al., Case No. 50 2015 CA 013012, Docket Entry 322.

 

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Retired Circuit Judge Kenneth D. Stern regularly contributes columns to the ADR Corner, and is a frequent panelist in seminars on Alternative Dispute Resolution.  Since his retirement, Judge Stern has been serving as a Special Magistrate, and as a Mediator and AAA-member Arbitrator.  He may be reached at [email protected]  or at (561) 901-4968.

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For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.