Court properly denied motion for post-trial juror interviews because movant failed to sufficiently inquire during voir dire.  [Added 1/17/12]

    After a defense verdict, Plaintiffs' lawyer moved for leave to interview several jurors "on the ground that they had concealed prior involvement with the court system during voir dire."  The trial court denied the motion.  Plaintiffs appealed.

    The Fourth DCA affirmed.  In order to obtain a post-trial juror interview on these grounds, a movant must meet the 3-part test of De La Rosa v. Zeqeira, 659 So.2d 239, 241 (Fla. 1995):  "First, the complaining party must establish that the information is relevant and material to jury service in the case.  Second, that the juror concealed the information during questioning.  Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence."  Analyzing the allegations and the questioning performed by Plaintiffs' lawyer during voir dire, the appeals court concluded:  "[P]laintiffs were not entitled to the interviews because the jurors’ failure to disclose the information, if any, were attributable to the plaintiffs’ lack of diligence in uncovering the information during voir dire."  Rodgers v. After School Programs, Inc., __ So.3d ___ (Fla. 4th DCA, No. 4D10-1307, 1/11/2012).

Court erred in denying post-trial motion to interview jurors in criminal case.  [Added 11/1/11]

    Convicted Defendant timely moved to interview jurors and for new trial.  Defendant alleged that an alternate juror had told defense counsel that several jurors had engaged in premature deliberations.  The court denied the motion as legally insufficient.  Defendant appealed.

    The Fourth DCA reversed and remanded.  Fla.R.Crim.P. 3.575 "provides that a party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors.  Upon 'a finding that the verdict may be subject to challenge,' the trial judge 'shall enter an order permitting the interview . . . .'”  The rule does not require the filing of sworn affidavits in order to interview a juror.

    The appeals court noted that the timing of deliberations does not inhere in the verdict.  Accordingly, "the trial court abused its discretion in denying the motion for juror interviews where the defendant’s allegations gave rise to a prima facie case of premature jury deliberations."  The court distinguished between allegations of a lone juror expressing an opinion and, as in this case, multiple jurors allegedly "improperly discussing the case during trial and . . . expressing opinions as to the defendant's guilt before the close of the evidence."  (See Ramirez v. State, 922 So.2d 386 (Fla. 1st DCA 2006); Williams v. State, 793 So.2d 1104 (Fla. 1st DCA 2001).)

    The court also outlined the procedure to be followed on remand:  "On remand, after an opportunity for juror interviews, the defense will bear the initial burden either to show that prejudice resulted or that the premature deliberations or conversations were of such character as to raise a presumption of prejudice.  Ramirez, 922 So.2d at 390.  If the defense proves that deliberations or conversations took place among jurors about the case before the case was submitted, the burden will shift to the State to rebut the resulting presumption of prejudice.  Id.  If the trial court finds that premature deliberations took place, it must order a new trial, unless the State proves that the defendant was not prejudiced by the jurors’ misconduct. Id."  Gray v. State, 72 So.3d 336 (Fla. 4th DCA 2011).

Court erred in denying post-trial motion to interview jurors who allegedly concealed information during voir dire.  [Added 6/2/11]  --  State Farm Mutual Auto. Ins. Co. v. Lawrence, 65 So.3d 52 (Fla. 2d DCA 2011).

Lawyer publicly reprimanded for threatening to present criminal charges to gain advantage in civil matter.  [Added 5/2/11]  --  Florida Bar v. Knowles (Fla., No. SC09-403, 4/28/2011), 2011 WL 1587360.

Court abused its discretion in granting motion for post-trial juror interviews.  [Added 3/19/11]  --  Parra v. Cruz, 59 So.3d 211 (Fla. 3d DCA 2011).

Court erred in granting motion to interview jurors that was not timely filed.  [Added 3/17/11]  --  Hannon v. Shands Teaching Hospital and Clinics, Inc., 56 So.3d 879 (Fla. 1st DCA 2011).

Rule 4-4.2 does not bar plaintiff's lawyers from communicating ex parte with treating physicians who are employed by defendant hospital.  [Added 2/8/11]  --  Lee Memorial Health System v. Smith, 56 So.3d 808 (Fla. 2d DCA 2011).

Florida Bar approves opinion addressing when lawyers may communicate with employees of state agency without consent of agency's counsel.  [Added 12/16/10]  -- 

    At its December 2010 meeting the Florida Bar Board of Governors modified and approved an advisory ethics opinion addressing questions relating to a lawyer's communication with employees of a state agency without the consent of the agency's legal counsel.  Florida Ethics Opinion 09-1 applies Rule 4-4.2 of the Florida Rules of Professional Conduct. to a fact situation in which a law firm that represents 4 clients in judicial or administrative proceedings involving a state regulatory agency wishes to communicate with certain employees of the agency without going through the agency's legal counsel.

    The headnote accompanying Opinion 09-1 summarizes the conclusions reached in the opinion:  "A lawyer may not communicate with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication.  A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency’s lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation.  The lawyer may be required to identify himself or herself as a lawyer who is representing a party in making those contacts.  Lawyers communicating with agency personnel are cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials.  If a lawyer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, the lawyer should ask State Agency’s lawyer if the person is represented in the matter before making the communication."

Lawyer held in indirect criminal contempt and jailed for post-trial contact with juror after court denied permission.  [Added 6/3/10]  --  Alan v. State, 39 So.3d 343 (Fla. 1st DCA 2010).

Court erred in enjoining parties, their counsel, and their agents from engaging in out-of-court publicity "consistent with" Rule 4-3.6.  [Added 5/27/10]  --  E.I. DuPont de Nemours and Co. v. Aquamar, S.A., 33 So.3d 839 (Fla. 4th DCA 2010).

Court properly permitted treating physician to have ex parte pre-deposition conference with her own lawyer, excluding discussion of plaintiff's care and treatment.  [Added 5/25/10]  --   Hasan v. Garvar, 34 So.3d 785 (Fla. 4th DCA 2010).

Florida patient confidentiality statute prohibits ex parte communication between non-party physician and his own lawyer.  [Added 11/19/06]  --  Hannon v. Roper, 954 So.2d 534 (Fla. 1st DCA 2006).

Police detective's alleged deception of defendant's lawyer is not grounds for suppressing defendant's resulting statement.  [Added 11/16/06]  --  State v. Raines, 944 So.2d 421 (Fla. 5th DCA 2006).

Lawyers for defendant hospital may have ex parte contact with deceased patient's non-party treating physicians, who were hospital agents, employees, or former employees.  [Added 10/3/05]  --  Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277 (Fla. 2d DCA 2005).

    See also Lee Memorial Health System v. Smith, 40 So.3d 106, 107 (Fla. 2d DCA 2010) ("physician-patient privilege does not apply to [medical center]'s communications with its employee physicians because such communications are not 'disclosures' that trigger the privilege").

Lawyer represented by counsel in postconviction criminal matter did not violate Rule 4-4.2 by ex parte communication with state's attorney.  [Added 1/31/05]  --  Durie v. State, 901 So.2d 171 (Fla. 5th DCA 2005) (on rehearing).

Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under F.S. SEC. 286.0115.  [Added 2/9/04]  --  The City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4^th DCA 2004).

Trial court erred in granting defense counsel's motion for ex parte contacts with physicians who treated deceased nursing home patient; contacts barred by patient-physician privilege.  [Added 1/29/04]  --  Knittel v. Beverly Health and Rehabilitative Services, Inc., 863 So.2d 1279 (Fla. 2d DCA 2004).

Where a contractual confidentiality agreement was determined not to protect certain information held by person, opposing counsel could communication with person in informal ex parte interview.  [Added 8/13/03]  --  Nestor v. Posner-Gerstenhaber, 857 So.2d 953 (Fla. 3d DCA 2003).