Ulloa v. Cmi, Inc.

• Decision Date: 25 February 2014
• Docket Number: No. SC11–2291.,SC11–2291.
• Parties: Carlos A. Alejandro ULLOA, et al., Petitioners, v. CMI, INC., Respondent.
• Court: Florida Supreme Court

133 So.3d 914

Carlos A. Alejandro ULLOA, et al., Petitioners,

v.CMI, INC., Respondent.

No. SC11–2291.

Supreme Court of Florida.

Nov. 7, 2013.

Rehearing Denied Feb. 25, 2014.

William R. Ponall of Snure & Ponall, P.A., Winter Park, FL; Andrew L. Cameron of Law Office of Andrew L. Cameron, Orlando, FL; and Jay Rooth of Moses & Rooth, Orlando, FL, for Petitioners.

Edward G. Guedes and John J. Quick of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, FL, for Respondent.

Robert Neal Harrison of Robert N. Harrison, P.A., Venice, FL, for Amicus Curiae Florida Association of Criminal Defense Lawyers.

PARIENTE, J.

The certified conflict presented in this case requires us to consider whether, in a criminal case, subpoenas can be served on an out-of-state corporation's registered agent in Florida to require that out-of-state, nonparty corporation to produce documents or materials located out-of-state, without utilizing the provisions of chapter 942, Florida Statutes. Chapter 942, the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Uniform Law), provides a statutory process by which parties can subpoena out-of-state, nonparty witnesses. See§ 942.06, Fla. Stat. (2010). In this case, after certain Florida criminal defendants were charged with driving under the influence (DUI), they sought the computer source codes of the breathalyzer equipment manufactured by CMI, Inc., a Kentucky-based corporation, by serving CMI's registered agent in Florida, even though this source code material was not located in Florida.

In CMI, Inc. v. Ulloa, 73 So.3d 787, 791 (Fla. 5th DCA 2011), the Fifth District Court of Appeal held that criminal defendants must follow the procedures set forth in the Uniform Law when requesting this material from out-of-state, nonparty witnesses and that service on CMI's registeredagent was insufficient to compel CMI to produce the source codes. The court then certified conflict between its decision and decisions of the Second District Court of Appeal in CMI, Inc. v. Landrum, 64 So.3d 693 (Fla. 2d DCA 2010), and the Third District Court of Appeal in General Motors Corp. v. State, 357 So.2d 1045 (Fla. 3d DCA 1978).¹

For the reasons that follow, we conclude that in criminal cases, in order to subpoena documents located in another state that are in the possession of an out-of-state nonparty, the party requesting the documents must utilize the procedures of the Uniform Law, as set forth in chapter 942. While the designation by an out-of-state corporation of a registered agent in Florida has many legal ramifications, as set forth in chapter 607 of the Florida Statutes, that designation does not allow for service of subpoenas on a registered agent to compel production in this state of out-of-state documents belonging to an out-of-state, nonparty corporation in connection with a criminal case, beyond that set forth in the Uniform Law. We reach this conclusion based on our determination that the subpoena power to compel the production of out-of-state documents belonging to out-of-state nonparty witnesses in a criminal case derives from the same source as the power to compel the attendance of out-of-state, nonparty witnesses—the Uniform Law. Accordingly, we disapprove the conflict cases of General Motors and Landrum to the extent that they conflict with our decision, and we approve the Fifth District's decision below.

FACTS

This case stems from numerous county court cases involving defendants being prosecuted for DUI. Ulloa, 73 So.3d at 788. In each case, the police administered breathalyzer tests to each of the DUI defendants using the Intoxilyzer 8000, a machine manufactured by CMI, a Kentucky-based corporation. Id. The defendants sought to suppress the results of the breathalyzer tests, and to this end, they served a subpoena duces tecum on CMI's registered agent in Florida, seeking the computer source codes for the software version used in the current Intoxilyzer 8000 instruments. The defendants alleged that the computer source codes would provide information on the accuracy of the machine's readings. Most of the defendants also sought to have out-of-state CMI employees testify in the Florida criminal proceedings, in addition to requiring CMI to produce the source codes. However, three of the defendants (Alejandro Ulloa, Eric Jackson, and Bradley Leonard) sought only the source codes and did not seek the testimony of out-of-state CMI employees.

As to these three defendants, the subpoena that was issued in Jackson's DUI case commanded CMI's custodian of records, in care of NRAI Services, Inc. (CMI's designated registered agent), to appear at the offices of issuing counsel and to bring with him all source codes for the Intoxilyzer 8000 software, version 8100.27. The second subpoena, issued in Leonard's DUI case, also commanded CMI's custodian of records, under penalty of contempt, to produce the source codes. The third subpoena, issued in Ulloa's DUI case, commanded CMI's records custodian to appear at the offices of the issuing attorney with the source codes or alternatively to mail or deliver the copies in lieu of appearance. All three subpoenas contained a statement that threatened the records custodian for CMI with contempt of court for failing to produce the materials or failing to appear at the issuing attorneys' offices with the requested materials.

CMI subsequently filed motions to quash the subpoenas duces tecum, including both those subpoenas that sought to have out-of-state CMI employees testify in the Florida proceedings and produce the source codes and those subpoenas that required CMI only to produce the source codes. In support of its motion, CMI argued that because CMI had no offices, employees, or documents in Florida, ² the DUI defendants should have been required to follow the procedures of the Uniform Law in order to compel the production of this material. In its motions to quash, CMI raised the following legal arguments: (1) a Florida trial court lacks subpoena power over nonparty witnesses located outside of Florida; (2) in the absence of this subpoena power, a criminal defendant must use the mechanisms afforded by the Uniform Law, a law that was enacted specifically to address a trial court's lack of extra-territorial subpoena power; (3) Florida's service of process statutes in chapter 48, Florida Statutes, do not provide for service of a nonparty, out-of-state witness subpoena on an out-of-state corporation's registered agent; (4) the Legislature intended for the Uniform Law to be interpreted in accordance with jurisprudence from other enacting jurisdictions so as to maintain uniformity in the law; and (5) the Florida Rules of Criminal Procedure do not contemplate the issuance of a discovery subpoena solely for production of documents. The county court denied CMI's motions to quash.

CMI filed a petition for a writ of certiorari with the circuit court, challenging the denials of the motions to quash. The circuit court consolidated all of the cases for purposes of appeal, as the cases raised similar legal issues. The court then reviewed the Second District's decision in Landrum, 64 So.3d at 694–95, which held that the Uniform Law applies to subpoenas that request testimony or that request both testimony and the production of documents, but does not apply to subpoenas served on a registered agent in Florida that request only the production of documents. Accordingly, the circuit court held that, with regard to those cases in which the DUI defendants requested both the testimony of a witness and the production of documents, the Uniform Law was applicable and the essential requirements of law had not been observed by issuing the subpoena duces tecum without following the procedures of the Uniform Law. However, with regard to Ulloa, Jackson, and Leonard, who requested only the production of the source codes, the circuit court held that the Uniform Law did not apply and that the county court correctly applied the law in denying CMI's motions to quash.

CMI then sought second-tier certiorari review pertaining to the portion of the order that required CMI to produce the source codes in Florida. The Fifth District, after reviewing the applicable statutory law and case law, concluded that the “only way to secure ... out-of-state witnesses or documents in a criminal case is to follow the procedures of the Uniform Law.” Ulloa, 73 So.3d at 790–91. Accordingly, the Fifth District quashed the portion of the circuit court's order that denied the petition for a writ of certiorari with respect to Ulloa, Jackson, and Leonard, and certified that its decision conflicts with the decisions in Landrum and General Motors.Ulloa, 73 So.3d at 791.

ANALYSIS

At the outset, we note that the defendants have not asserted that they are unable to obtain the materials requested by following the procedures in the Uniform Law. Therefore, we do not address any purported constitutional argument that our interpretation of the Uniform Law in this case in any way interferes with the defendants' Sixth Amendment right to compulsory process for obtaining witnesses in their defense. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (“[C]riminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.”). Nor is it necessary for us to determine whether the materials sought in this case would be admissible.

The petitioners also do not claim that the source codes are actually in the possession of the registered agent or otherwise located in Florida.³ Similarly, CMI does not dispute the petitioners' right to subpoena evidence from CMI, if the proper procedure is followed. Rather, the issue, distilled to its basics, is the legal validity of a subpoena served on an out-of-state...