Ex parte Esteban

• Decision Date: 20 August 2021
• Docket Number: 2200686,2200685
• Parties: Ex parte Jesus Esteban v. Jessica Esteban In re: Jesus Esteban Ex parte Jesus Esteban In re: Jessica Esteban v. Jesus Esteban
• Court: Alabama Court of Civil Appeals

Ex parte Jesus Esteban

In re: Jesus Esteban v. Jessica Esteban

Ex parte Jesus Esteban

In re: Jessica Esteban v. Jesus Esteban

Nos. 2200685, 2200686

Alabama Court of Civil Appeals

August 20, 2021

Shelby Circuit Court, DR-19-900066.01, DR-19-900066.02

PETITION FOR WRIT OF MANDAMUS

EDWARDS, JUDGE.

On April 1, 2021, Jesus Esteban ("the father") filed in the Shelby Circuit Court ("the trial court") a complaint seeking to modify the custody and child-support provisions of the 2019 judgment divorcing him from Jessica Esteban ("the mother"); that action was assigned case number DR-19-900066.01 ("the father's modification action"). The mother filed an answer to the father's complaint on April 8, 2021. On April 7, 2021 the mother filed a verified petition, seeking a determination that the father was in contempt for failing to comply with a requirement in the parties' divorce judgment that he sign a quitclaim deed; that action was assigned case number DR-19-900066.02 ("the mother's contempt action"). The father's modification action and the mother's contempt action were consolidated by an order entered by the trial court. The trial court entered an order scheduling a trial for June 14, 2021.

On May 4, 2021, the mother filed a subpoena duces tecum directed to the Shelby County Department of Human Resources ("DHR"), requesting that DHR produce at the June 14, 2021, trial "all records, documents, reports, audio recordings, video recordings, etc. relating to" the father. On May 5, 2021, the father filed a motion to quash the subpoena duces tecum and requesting that sanctions be imposed on the mother. In that motion, the father argued that the subpoena duces tecum should be quashed on the basis that the mother had failed to comply with the requirement of Rule 45, Ala. R. Civ. P., because, he asserted, she had failed to file a notice of intent to file a subpoena on a nonparty or to seek leave of the court to file a subpoena less than 45 days after service of the complaint. The father also challenged the subpoena duces tecum on the ground that it sought "immaterial, irrelevant, and confidential" information. The trial court granted the father's motion to quash on May 6, 2021, but did not impose sanctions on the mother.

On May 11, 2021, DHR filed a motion to quash the mother's subpoena duces tecum or, in the alternative, for a protective order. That same day, the mother filed a motion seeking reconsideration of the May 6, 2021, order quashing the subpoena duces tecum. On May 12, 2021, the trial court entered an order denying DHR's motion to quash but granting its motion for a protective order. In that order the trial court directed DHR to submit the subpoenaed documents or other materials to the trial court for inspection. Although the documents and other materials do not appear to have been produced to the trial court at that time the trial court stated in its order that "certain" of the subpoenaed documents and other materials were "relevant and material to the issues in this cause" and that the documents and other materials were "not otherwise reasonably available to the parties."

The trial court issued another order on May 12, 2021, in which it warned the parties that, if the matter (presumably the mother's motion for reconsideration of the May 6, 2021, order granting the father's motion to quash) proceeded to a virtual hearing and if it concluded that the position taken by either party was "legally without merit," it would award costs to the other party. On May 15, 2021, apparently after holding a virtual hearing on the matter, the trial court granted the mother's motion seeking reconsideration of the May 6, 2021, order quashing the subpoena duces tecum, determined that the father's position on the issue was "legally without merit," and ordered the father to pay $520 to the mother's counsel within 14 days.

The father filed these petitions for the writ of mandamus in this court on June 1, 2021, and this court consolidated the petitions. On the father's motion, we stayed the June 14, 2021, trial scheduled in this matter. The mother filed an answer to the petitions.

"[A] mandamus petition may be used to review rulings on motions to quash subpoenas from parties and nonparties." Ex parte Summit Med. Ctr. of Montgomery, Inc., 854 So.2d 614, 616 (Ala.Crim.App.2002).

"' "A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."' "

Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005)).

The father contends first that the mother did not follow the proper procedure for issuing a subpoena duces tecum to DHR under Rule 45(a), Ala. R. Civ. P., which reads, in pertinent part:

"Form; Issuance.

"(1) Every subpoena shall

"(A) state the name of the court from which it is issued; and

"(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and

"(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing, or sampling of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and

"(D) set forth the text of subdivisions (c) and (d) of this rule.

"A command to produce evidence or to permit inspection, copying, testing, or sampling may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.

"(2) A subpoena commanding attendance at a trial or hearing and a subpoena commanding attendance at a deposition shall issue from the court in which the action is pending.

"(3) The clerk shall issue a subpoena to a party requesting it, except that a subpoena for production, inspection, copying, testing, or sampling separate from a subpoena commanding the attendance of a person shall issue from the court in which the action is pending pursuant to the additional requirements set forth below:

"(A) Notice of Intent to Serve Subpoena for Production or Inspection. The party seeking issuance of a subpoena for production, inspection, copying, testing, or sampling shall serve a notice to every other party of the intent to serve such subpoena upon the expiration of fifteen (15) days from the service of the notice, and the proposed subpoena shall be attached to the notice. The court may allow a shorter or longer time. Such notice may be served without leave of court upon the expiration of forty-five (45) days after service of the summons and complaint or other mode of service under Rule 4-Rule 4.4 upon any defendant, except that leave is not required within the forty-five-(45-) day period if a defendant has previously sought discovery.

"(B) Objection to Issuance of Subpoena for Production or Inspection. Any person or party may serve an objection to the issuance of a subpoena for production, inspection, copying, testing, or sampling within ten (10) days of the service of said notice and in such event the subpoena shall not issue. The party serving the notice may move for an order under Rule 37(a)[, Ala. R. Civ. P., ] with respect to such objection. If no objection is timely served, the clerk shall cause the subpoena to be issued upon the expiration of fifteen (15) days from the service of the notice or upon the expiration of such other time as may have been allowed by the court."

According to the father, because the mother sought the production of documents and other materials by use of a subpoena duces tecum, she was required under Rule 45(a)(3)(A) to first serve upon him notice of her intent to file the subpoena. He also contends that the mother was required to have sought leave of the court to serve the subpoena because less than 45 days had elapsed since she was served with the summons and complaint. The mother, however, argues that, because the subpoena duces tecum required, in addition to producing the requested documents or materials, that the custodian of records for DHR appear in person at the trial, she was not required by Rule 45(a)(3)(A) to serve notice of intent to issue the subpoena.

We agree with the mother that, under the plain language of the rule, because the subpoena duces tecum did not request only the production of documents or other materials and instead compelled both the production of documents or other materials and the attendance of the custodian of records for DHR at the trial, she was not required to file a notice of intent to serve the subpoena. This conclusion is bolstered by the following statements contained in the Committee Comments to the October 1, 1995, Amendment to Rule 45:

"[The amendment] authorizes the use of a subpoena to compel production of evidence independent of a deposition. Former Ala. R. Civ. P. 34 covered this subject. It preserves former Rule 34 for a forty-five- (45-) day ban on discovery through subpoenas seeking evidence from a person not a party separate from a deposition. It carries forward the procedure of former Ala. R. Civ. P. 34 for filing and service of a notice of intent to issue subpoena ...."^[1]

Thus ...