Opinion
No. 63-853.
June 9, 1964. Rehearing Denied September 10, 1964.
Appeal from the Circuit Court for Dade County, Ray Pearson, J.
Carr Warren, Miami, for appellant.
Mershon, Sawyer, Johnston, Simmons Dunwody and James E. Glass, Miami, for appellees.
Before BARKDULL, C.J., and CARROLL and HORTON, JJ.
This is an interlocutory appeal from an order in equity which quashed a subpoena duces tecum addressed to a party to the cause on the ground that "a subpoena duces tecum will not run to a party at time of trial."
We are of the opinion that in so holding the chancellor was in error. Rule 1.34 of the 1954 Florida Rules of Civil Procedure, 30 F.S.A., which provides for issuance of witness subpoenas and subpoenas duces tecum, is the same as rule 45 of the Federal Rules of Civil Procedure, 28 U.S.C.A. In the absence of a square holding on the matter in Florida we may rely on the construction which the federal courts have placed on their similar rule in this connection. The federal courts hold their rule 45 authorizes issuance of a subpoena duces tecum to a party to the cause. See Crary v. Porter, 8 Cir. 1946, 157 F.2d 410, 415; Arcadia Knitting Mills, Inc. v. Princeton Knitting Mills, Inc., D.C.S.D.N.Y. 1940, 35 F. Supp. 806; United States v. E.I. Du Pont De Nemours Co., D.C.N.D.Ill. 1953; 14 F.R.D. 341; 2B Barron Holtzoff, Federal Practice Procedure, § 1002; 4 Moore, Federal Practice, ¶ 34.02 [1], [3] (2 ed.). And see generally 97 C.J.S. Witnesses § 25(d); 4 Jones, Evidence, § 884 (5 ed.).
"* * * Rule 1.34 first became a part of our rules of procedure in 1954 and was adapted from Federal Rule of Civil Procedure 45. Each of our said rules and the corresponding federal rule are essentially identical. Therefore, since the point in controversy here has not been ruled on by our Supreme Court, we may look to decisions by the various federal courts for assistance." Brooker v. Smith, Fla.App. 1959, 108 So.2d 790, 795
Though not passing on the point directly, and primarily concerned with other issues, the practice of issuing a subpoena duces tecum to a party under 1.34 F.R.C.P. appears to have been given approval by several Florida cases. See Brooker v. Smith, Fla.App. 1959, 108 So.2d 790; Cooper v. Fulton, Fla.App. 1960, 117 So.2d 33, 35, 83 A.L.R.2d 297; Metz v. Smith, Fla.App. 1962, 141 So.2d 617.
We do not deal with or here decide whether one who seeks to have a subpoena duces tecum issued to a party and returnable at trial needs to show good cause (as is required under rule 1.28 F.R.C.P. of a motion for an order to produce), either as a condition of its issuance, or in order to withstand a motion to quash the subpoena duces tecum on the ground of want of good cause. That question does not appear to have been a ground or concern in the trial court.
Cf. Brooker v. Smith, supra.
Accordingly, the order appealed from is reversed.
Reversed.
I must respectfully dissent from the majority opinion in this cause. The issue before this court is whether the chancellor erred in quashing a subpoena duces tecum directed to a party, which attempted to require the production of documents at a trial. The record reveals that the party who served the subpoena duces tecum waited until the eve of the final hearing to file a subpoena duces tecum addressed to the adverse party requiring the production of the following items: (1) All account books of Thurman A. Whiteside including his attorney at law account, personal accounts, all trust accounts, corporate accounts and all cash books, journals and ledgers pertaining to all such account. (2) All stock accounts or brokerage accounts in the name of Thurman A. Whiteside or Thurman A. Whiteside, Trustee. (3) All check books, check stubs, deposit slips, bank statements and cancelled checks for all accounts maintained by Thurman A. Whiteside or T.A. Whiteside whether as trustee, or individually, or jointly with any other person. (4) All records reflecting the purchase and sale by Thurman A. Whiteside of stock of First National Bank of Miami. (5) All financial statements, balance sheets, audit reports or other documents reflecting the assets and liabilities as prepared by Haskins and Sells.
The motion to quash the subpoena duces tecum was filed and subsequently granted, and it is from the order quashing this subpoena that this appeal was prosecuted.
Prior to the adoption of our present rules of procedure, the previous rules clearly indicated that a motion for subpoena duces tecum could not be addressed to a party either at the time of taking his deposition or at the time of trial. See: Therrell v. Howland, 108 Fla. 299, 146 So. 203; Biscayne Trust Co. v. O'Ferrell, 113 Fla. 838, 152 So. 621; § 63.49 Fla. Stat., 1949 (Repealed); Rule 49, Florida Equity Rules, superseded by Florida Rules of Civil Procedure, 1954. The reasoning behind the rule was that it would enable a party to harass and annoy the opposing party if he were permitted to file a subpoena duces tecum without the showing of cause directed to another party. Under our present rules, a subpoena duces tecum may not be addressed to a party at the time of taking his deposition. See: Metz v. Smith, Fla.App. 1962, 141 So.2d 617; McKinley Company v. Arpin, Fla. App. 1962, 143 So.2d 216. The annoyance and harassment which would be present if a subpoena duces tecum could be addressed at the time of taking a deposition is just as great or greater at the time of trial, and it appears that [reviewing the provisions of Rules 1.28, 1.34 of the Florida Rules of Civil Procedure in pari materia] it would be inappropriate to permit the serving of a subpoena duces tecum on a party for production of documents at a trial. This appears to be in conformity with the general practice as indicated by Barron Holtzoff in their works 2B Federal Practice and Procedure § 1002. This is not to say that if, upon the motion to quash, the party serving same had shown good cause it could not have procured the production of the documents. See: Olin's Rent-A-Car System, Inc. v. Avis Rental Car System of Florida, Inc., Fla.App. 1961, 135 So.2d 434. However, in the instant case, when no good cause was shown at the time of the hearing on the motion to quash, I would affirm the action of the chancellor in quashing the subpoena duces tecum.