THE STATE OF FLORIDA, EX REL. THE EVERGLADES CYPRESS COMPANY, A DELAWARE CORPORATION, PETITIONER,
v.
FRANK A. SMITH, AS JUDGE OF THE SEVENTEENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR ORANGE COUNTY, DEFENDANT
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The Florida Supreme Court denied a petition for mandamus seeking to compel a circuit judge to issue a subpoena duces tecum for bank records held by a liquidator. The court held that discovery of documents in the hands of an adverse party is governed by statutory rules and is reviewable by appeal, not mandamus.
The peremptory writ of mandamus should be denied because discovery and production of documents in the hands of an adverse party in chancery causes is controlled by statutory sections 48 and 49 of Chapter 14658 of the Acts of 1931, and errors in granting or denying such discovery are reviewable by appeal, not mandamus.
“A subpoena duces tecum is a process by which the court, at the instance of a suitor, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending controversy to produce it at the trial.”
Definition of subpoena duces tecum and its proper scope
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Join FLexlaw to unlock all legal intelligenceThe Everglades Cypress Company sought a subpoena duces tecum directed to W. H. Tunnicliffe, as liquidator of the State Bank of Orlando & Trust Company…
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—This is a proceeding in mandamus. The object of the writ is to require the Circuit Judge of the Seventeenth Judicial Circuit to issue a subpoena duces tecum directed to one "W. H. Tunnicliffe, as Liquidator of the State Bank of Orlando & Trust Company, requiring him to bring with him and produce the books, records, files and documents in his hands, as Liquidator, to show certain facts material to relator to establish a claim sued on in the Chancery Court, in a suit wherein The Everglade Cypress Company is complainant and said Tunnicliffe, as Liquidator of the State Bank of Orlando & Trust Company, is defendant.
A subpoena duces tecum is a process by which the court, at the instance of a suitor, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending controversy to produce it at the trial.
The writ is to compel the production of books and papers, the existence and character of which is already known to the party seeking the evidence, and such books and papers should be described with reasonable certainty in the application for the process. See: In re Subpoena Duces Tecum, 248 Fed. 137; 4 Wigmore on Evidence, (2nd Ed.) Sec. 2199, pages 663-665; Thompson on Trials, Yol. 1, page 589; Hoppe v. Ostrander, 183 Fed. 786; American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529; 70 Atl. 867; 28 Am. St. Rep. 749; 15 Am. & Eng. Ann. Cas. Ex parte R. D. Gould, 60 Tex. Crim. Rep. 442; 132 S. W. 364, 31 L. R. A. (N. S.) 835, and note.
The peremptory writ of mandamus applied for in this case should be denied on the authority of Earle v. Detroit Security & Trust Company, decided at the present term, wherein it was pointed out that the subject of discovery, interrogatories, inspection and production of documents, etc., as applied to the parties themselves, in chancery causes is now controlled by Sections 48 and 49, Chapter *9314658, Acts of 1931. Under our existing Chancery Practice the process of subpoena duces tecum is applicable to witnesses other than the adverse party to the case.
Errors committed by the court in granting or denying a party discovery or inspection and production of documents, in the hands of the adverse party himself, are redressible by appeal and not by mandamus.
Peremptory writ of mandamus denied and proceeding dismissed.
Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J.J., concur.
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Vann v. State, 85 So. 2d 133 (Fla. 1956)…be informed what is required of him and may intelligently obey the command of the subpoena. See the cases from all jurisdictions collected in the annotation in 23 A.L.R.2d at page 867 et seq., including State ex rel. Everglades Cypress Co. v. Smith, 104 Fla. 91, 139 So. 794. This requirement may be satisfied if the categories of documents desired are stated, along with a reasonable period, of time covered by the documents and a statement of the subject matter, to which the documents pertain. See Brown v. U…
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Gen. Motors Corp. v. State, 357 So. 2d 1045 (Fla. 3d DCA 1978)…those documents located outside Florida. “To avoid being overbroad a subpoena duces tecum must designate and specify with some degree of certainty and particularity the documents sought to be produced. State ex rel. Everglades Cypress Co. v. Smith, 104 Fla. 91, 139 So. 794 (1932). This test prohibits the issuance of subpoena duces tecum requiring the production of large numbers of documents merely to allow for a search through them to gather evidence. Imparate [Imparato] v. Spicola, 238 So. 2d 503 (2nd [*…