Helge v. Druke

• Decision Date: 11 May 1983
• Docket Number: No. 2,CA-CIV,2
• Citation: 136 Ariz. 434,666 P.2d 534
• Parties: Ralph K. HELGE, Petitioner, v. The Honorable William E. DRUKE, Presiding, the Honorable Thomas Meehan and the Honorable Robert J. Hooker, Judges of the Superior Court, in and for the County of Pima, Respondents, and Ramona ARMSTRONG, Real Party in Interest. 4794.
• Court: Arizona Court of Appeals

Page 534

666 P.2d 534

136 Ariz. 434

Ralph K. HELGE, Petitioner, v. The Honorable William E. DRUKE, Presiding, the Honorable Thomas Meehan and the Honorable Robert J. Hooker, Judges of the Superior Court, in and for the County of Pima, Respondents and Ramona ARMSTRONG, Real Party in Interest.

No. 2 CA-CIV 4794.

Court of Appeals of Arizona Division 2.

May 11, 1983.

Ralph K. Helge, Pasadena, Cal., in pro. per

Ettinger & Deckter, P.C. by Daniel C. Gloria, Tucson, for real party in interest.

OPINION

HOWARD, Chief Judge.

Petitioner challenges the refusal of the trial court to grant his motion for change of judge and to grant his motion to quash a subpoena duces tecum. A special action is the proper vehicle for review. Equitable General Insurance Company v. Helm, 128 Ariz. 6, 623 P.2d 365 (1981); Dean v. Superior Court in and for County of Maricopa, 84 Ariz. 104, 324 P.2d 764 (1958); Kirkpatrick v. Industrial Commission, 10 Ariz.App. 564, 460 P.2d 670 (1969).

The petitioner is an attorney and a resident of California. He was in Tucson attending court proceedings in the dissolution action between Herbert W. Armstrong, the patriarch of the Worldwide Church of God, and the real party in interest. Petitioner is also the private attorney for Mr. Armstrong, except for the dissolution proceedings, and is the attorney for the Worldwide Church of God. During a session on January 19, 1983, he was served in his individual capacity with a subpoena duces tecum to appear on January 26, 1983, at a deposition in Tucson. The subpoena required him to produce 26 categories of documents, all apparently located in California. Petitioner was also tendered a check for $14 for witness fees. He filed a motion for change of judge which was denied on March 14, 1983, and his motion to quash was denied the following day.

He first contends the trial court erred in denying his peremptory challenge of the judge under Rule 42(f), Arizona Rules of Civil Procedure, 16 A.R.S. We do not agree. The rule is limited to parties. A "party" is one who is directly interested in the subject matter of the suit or some part thereof, who has a right to make defenses, control proceedings and examine and cross-examine the witnesses. It means a person who has a right to appear and contest any litigated issue in court. Chalpin v. Mobile Gardens, Inc., 18 Ariz.App. 231, 501 P.2d 407 (1972). Petitioner did not have any right to appear and contest any of the issues in the dissolution proceedings and he was therefore not a "party."

Petitioner contends the trial court erred in denying his protective order because: (1) He is not subject to a subpoena duces tecum since he is not an Arizona resident; (2) the subpoena duces tecum is unreasonable and oppressive; (3) neither he nor his clients were given 15 days' notice of a request to produce documents as required by Cal.Civ.Proc.Code § 1985.3; (4) some of the documents are not in his control; (5) numerous documents belong to clients of the witness and therefore their production would violate the attorney/client privilege; (6) the real party in interest did not show good cause or relevancy; (7) he has not been tendered the fees required by statute; (8) the subpoena violates both his and his client's right of freedom of association protected under the First and Fourteenth Amendments of the United States Constitution and Article 2, Section 5 of the Arizona Constitution, and (9) the subpoena violates his and his client's right of privacy.

Relying on our case of Armstrong v. Hooker, 135 Ariz. 358, 661 P.2d 208 (1982), petitioner contends that the superior court lacked the jurisdiction to subpoena him because he is not a resident of Arizona. Petitioner's reliance is misplaced. Armstrong v. Hooker, supra, dealt with the question of whether an out-of-state plaintiff can be compelled to come into the jurisdiction to attend court proceedings. In holding that the court was without power to compel such presence, we stated that, in the absence of a statute, a state court cannot compel the attendance of a witness who is a non-resident of and is absent from the state. See also, Wilcox v. Hunt, 38 U.S. (13 Pet.) 378, 10 L.Ed. 209 (1839); State v. Rasor, 168 S.C. 221, 167 S.E. 396 (1933). Here, petitioner was served while he was present in Arizona. Subpoenas to compel the attendance of a witness may run to the boundaries of the state and a witness present at any place in the state may be compelled to attend.

Petitioner contends that even if the court had jurisdiction to subpoena him for the taking of his deposition, it did not have the power to require him to produce documents located in California. We do not agree. Courts have frequently required persons within their jurisdictions to produce books and papers which were beyond the territorial limits of the court, even in cases where the documents were located in a foreign country. Cf., Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327 (1907); First National City Bank of New York v. Internal Revenue Service, 271 F.2d 616 (2nd Cir.1959), cert. den. 361 U.S. 948, 80 S.Ct. 403, 4 L.Ed. 381 (1960); Securities and Exchange Commission v. Minas de Artemisa, S.A., 150 F.2d 215 (9th Cir.1945); Independent Order of Foresters v. Scott, 223 Iowa 105, 272 N.W. 68 (1936); Copper King of Arizona v. Robert, 76 N.J.Eq. 251, 74 A. 292 (1909); Holly Manufacturing Co. v. Venner, 93 N.Y.Sup.Ct. (86 Hun.) 42, 33 N.Y.S. 287 (1895); and see Annot. 82 A.L.R.2d 1403 (1962). Thus, if petitioner had control of the documents located in California, he can be required to produce them in Arizona. See 5A Moore's Federal Practice p 45.05.

Petitioner contends that he cannot be compelled to produce records and documents of the Worldwide Church of God and a Nevada corporation called HERBERT W. ARMSTRONG, The Apostle of the Worldwide Church of God, since he had neither possession nor control over the records of these corporations. We first note that the record contains no affidavit by petitioner to support his contention that he does not have control. Second, a witness may be compelled to produce a document that he controls though he does not have possession of it. Schwimmer v. United States, 232 F.2d 855 (8th Cir.1956), cert. den. 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52; Bough v. Lee, 29 F.Supp. 498 (S.D.N.Y.1939); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2454 at 425. We note, however, that while the record discloses that petitioner is the secretary of the Worldwide Church of God, a California corporation, there was nothing in the record that discloses that petitioner has any relationship with the Nevada corporation. Therefore, respondents have the right to request petitioner to produce books and documents and other tangible evidence relating to the Worldwide Church of God, but not to the Nevada corporation.

Petitioner's contention that the subpoena duces tecum should be quashed for failure to comply with the applicable California law is without merit since the validity of the subpoena duces tecum is governed by Arizona and not California law.

Petitioner contends that the subpoena should be quashed because some of the material requested would violate the attorney/client privilege and because it asks him to produce material protected as his work product. Neither by a subpoena duces tecum, nor by any other procedure, may a party obtain privileged documents. Rule 26(b)(1), Arizona Rules of Civil Procedure, 16 A.R.S. ¹ But the claim of privilege must normally be directed towards specific documents so that the court can rule intelligently thereon. Hence, a general objection to a subpoena may be too vague. Since petitioner's objections here were not specific, we cannot fault the trial court for denying petitioner's claim based upon privilege.

Petitioner asserts that the subpoena duces tecum should have been quashed because it was issued without a showing of good cause. Until 1970 it was the law in Arizona that a party at whose request the subpoena was issued had the burden, if the subpoena were challenged, of establishing good cause for its issuance. See State Farm Insurance Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965). This is no longer the law. The requirement of good cause was read into Rule 45 from Rule 34. That requirement has now been eliminated from Rule 34 and there is no justification for continuing to apply it to Rule 45. See "State Bar Committee Note 1970 Amendment" to Rule 34(a). Thus the burden to establish that a subpoena duces tecum is unreasonable or oppressive is on the party who seeks to have it quashed. He cannot rely on the mere assertion that compliance would be burdensome or onerous without showing the manner and extent of the burden and the injurious consequences of compliance. United States v. International Business Machines Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); Ghandi v. Police Department of City of Detroit, 74 F.R.D. 115, 124 (E.D.Mich.1977); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2457 at 435. Petitioner did not demonstrate below how the obedience to the subpoena duces tecum would be burdensome or oppressive. In fact, at oral argument before this court he stated that the gathering of information would be easy since the Worldwide Church of God had the most sophisticated computer system in California.

Petitioner contends that respondents failed to show the relevancy of the material subpoenaed. We start with the proposition that it is not necessary to establish the admissibility of documents sought to be discovered since relevancy rather than admissibility is the test in determining whether evidence sought by a subpoena duces tecum is proper. Steamship Co. of 1949 v. China Union Lines, Hong Kong, Ltd., 123 F.Supp. 802 (S.D.N.Y.1954); United States v. E.I. DuPont DeNemours & Co., 14 F.R.D. 341 (N.D.Ill.1953). Here the burden was on petitioner to show why the requested documents were irrelevant. Zucker v. Sable, ...