ABC LIQUORS, INC., A FLORIDA CORPORATION, PETITIONER,
v.
CARL BERKEY, RESPONDENT
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ABC Liquors sought certiorari review of a circuit court order sustaining an objection to ABC's notices of production from non-parties under Florida Rule 1.351(b), claiming the rule denies due process because non-requesting parties do not receive documents simultaneously with the requesting party. The appellate court denied the writ, holding that certiorari is unavailable because Rule 1.351 is self-executing: any objection filed by a non-requesting party automatically eliminates the rule as a vehicle for obtaining documents, making the trial court's order superfluous and incapable of causing irreparable harm.
Certiorari is not available because Rule 1.351 is self-executing and exclusively consensual; upon any objection filed by a non-requesting party, the Rule 1.351 procedure is automatically unavailable and the requesting party must resort to deposition. The trial court's order was therefore superfluous and could not cause irreparable harm to the petitioner.
[1] A party seeking production of documents from a non-party under Rule 1.351 of the Florida Rules of Civil Procedure may not use that rule if any other party serves an objec…
[2] Upon the filing of an objection to production under Rule 1.351, the requesting party must resort to other means, such as a deposition, to obtain the documents from a non-…
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Join FLexlaw to unlock all legal intelligence“Rule 1.351 is exclusively consensual. Upon the service of an objection by any nonrequesting party, the requesting party may not use the 1.351 procedure, but instead must revert to the other means of obtaining the documents — taking the deposition of the custodian of the records.”
Establishes that Rule 1.351 is self-executing and any objection automatically eliminates its availability
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Join FLexlaw to unlock all legal intelligenceABC Liquors served Notices of Production from Non-Parties on Carl Berkey. Berkey objected to these notices on due process grounds, arguing that Rule 1…
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GRIFFIN, Judge.
The Petitioner, ABC Liquors, Inc., seeks certiorari review of a circuit court order that sustained Respondent Carl Berkey’s objection to ABC’s Notices of Production from Non-Parties on the ground that Rule 1.351(b) of the Florida Rules of Civil Procedure, as written, denies due process to the parties who have not initiated the notice and subpoena. The rule provides that, upon the requesting party’s receipt of documents from the nonparty, the requesting party must supply copies to all other parties who request copies and who pay the reasonable cost of preparing the copies. The due process denial, according to the challenged order, occurs because the nonre-questing parties (here, respondent) do not get the documents simultaneously with the requesting party. The court’s order sustained the objection and ordered ABC to proceed by deposition to obtain production from .non-parties.
No matter how extraordinary we may find this ruling by the trial court, we conclude that certiorari is not available as a means of review. Rule 1.351(b) provides that:
If any party serves an objection to production under this rule within 10 days of service of the notice or the person upon whom the subpoena is to be served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule.
The Committee Note to this rule states: “If any person objects, recourse must be had to Rule 1.310.” In short, as written, Rule 1.351 is exclusively consensual. Upon the service of an objection by any nonre-questing party, the requesting party may not use the 1.351 procedure, but instead must revert to the other means of obtaining the documents — taking the deposition of the custodian of the records. There is no procedure within the rules for evaluating the sufficiency of an objection. Indeed no grounds at all appear to be required. The rule is self-executing: when any objection is filed, Rule 1.351 ceases to be available. See Jones v. Jones, 463 So. 2d 564 (Fla. 1st DCA 1985).
In the present case, an objection was filed, which was enough under the rule to eliminate Rule 1.351 as a vehicle available to Petitioner to obtain documents from non-parties. The order complained of was superfluous. This being so, no matter how greatly the trial court’s order declaring the rule invalid for due process defects may have departed from the essential requirements of the law, it could not cause irreparable harm to the Petitioner. WRIT DENIED.
W. SHARP and COWART, JJ., concur.
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Patrowicz v. Wolff, 110 So. 3d 973 (Fla. 2d DCA 2013)…ers, Inc., 690 So. 2d 743, 744 (Fla. 5th DCA 1997). “[W]hen any objection is filed, Rule 1.351 ceases to be available” and the party seeking the documents may proceed only by taking a deposition of the records custodian. ABC Liquors, Inc. v. Berkey, 589 So. 2d 457, 458 (Fla. 5th DCA 1991); see also rule 1.351(c) (“If the person upon whom the subpoena is served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule, and relief may be…
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Russell v. Stardust Cruisers, Inc., 690 So. 2d 743 (Fla. 5th DCA 1997)…ns. Production was stayed pending review of the order by certiorari. Rule 1.351 is self-executing and an objection requires that a deposition of the records custodian be taken in order to obtain the requested documents. ABC Liquors, Inc. v. Berkey, 589 So. 2d 457 (Fla. 5th DCA 1991). Holly Bluff did not seek to depose the custodians of records they sought after it received petitioner’s objection, and the trial court erred when it did not require the deposition of the records custodians. This cannot, however,…
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Lyons v. Sanford D. Lyons, 162 So. 3d 212 (Fla. 4th DCA 2015)…r the production of documents, the proponent must follow Rule 1.310. A trial court was without authority to hear the objection to the subpoena. Russell v. Stardust Cruisers, Inc., 690 So. 2d 743, 744 (Fla. 5th DCA 1997); ABC Liquors, Inc. v. Berkey, 589 So. 2d 457, 458 (Fla. 5th DCA 1991). Apparently, practitioners were not in agreement that any objection to a Rule 1.351 subpoena should always lead to the more expensive procedure of taking a deposition pursuant to Rule 1.310. See Bruce J. Berman, Florida Pra…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985)
- Herndon W. Jones, Jr. v. Jones, 463 So. 2d 564 (Fla. 1st DCA 1985)