Sunrise Shopping Center, Inc. v. Allied Stores Corp., 71-258

• Citation: 270 So.2d 32
• Decision Date: 30 November 1972
• Docket Number: No. 71-258,71-258
• Parties: SUNRISE SHOPPING CENTER, INC., a Florida corporation, et al., Appellants, v. ALLIED STORES CORPORATION, a Delaware corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 32

270 So.2d 32

SUNRISE SHOPPING CENTER, INC., a Florida corporation, et al., Appellants, v. ALLIED STORES CORPORATION, a Delaware corporation, et al., Appellees.

No. 71-258.

District Court of Appeal of Florida, Fourth District.

Nov. 30, 1972.

Rehearing Denied Dec. 29, 1972.

Carl A. Hiaasen, of McCune, Hiaasen, Crum, Ferris & Gardner, Ft. Lauderdale, for appellants.

Dennis G. King, of McCarthy, Steel, Hector & Davis, Miami, for appellees.

OWEN, Judge.

Plaintiffs in an action seeking equitable relief have taken an interlocutory appeal from an order granting defendants' motion under Rule 1.410(b) RCP, 30 F.S.A., to quash a subpoena duces tecum directed to a nonparty witness, which order also quashed the notice of deposition.

Appellants contend (1) a subpoena duces tecum under Rule 1.410 RCP can be quashed only upon a showing that it is unreasonable and oppressive, and that no such showing was made in this case; (2) only the witness upon whom a subpoena duces tecum is served has standing to complain that it is unreasonable and oppressive to the witness, and that the witness in this case made no such complaint; (3) that a motion for protective order under the provisions of Rule 1.310(b) RCP, while available to either a party to the person to be examined, requires that good cause be shown, and that there was no showing of good cause made here.

First, the question of a party's standing to seek an order quashing a subpoena duces tecum directed to another. Rule 1.410(d) RCP ¹ which pertains to a subpoena for taking depositions, expressly provides that the subpoena is subject to subdivision (b) of the same rule, and to subdivision (b) of Rule 1.310 RCP. Looking at Rule 1.410(b) RCP ² it is noted that it contains no prohibition against a party seeking an order to quash a subpoena which is unreasonable and oppressive. Looking at Rule 1.310(b) RCP, ³ it is noted that it expressly permits a motion for protective order to be made by any party as well as the person to be examined. Considering these several rules in pari materia, we conclude that the defendants had standing to seek an order quashing the subpoena duces tecum on the grounds that it was unreasonable and oppressive as to the witness. We might add that this view accommodates a practical approach to the not unusual situation where a witness, served with a subpoena duces tecum which he feels to be unreasonable and oppressive, will simply complain to the other party of the hardship, and that party in turn will more likely than not present the issue to the court without the necessity of the witness being put to the trouble and expense of presenting a motion on his own behalf.

Even though the defendants had standing under Rule 1.410 RCP to seek an order quashing the subpoena duces tecum directed to a non-party witness, appellants are correct in their contention that the court may not order the subpoena quashed under this rule unless the subpoena is unreasonable and oppressive. By necessary implication, there must be some facts before the court tending to show the unreasonableness and oppressiveness of the subpoena. The sufficiency thereof is a factual determination for the trial judge who is vested with a broad judicial discretion in the matter, and whose order will not be overturned absent a clear showing of abuse of that discretion.

The subpoena duces tecum sought production of certain specified documents relating to two mortgages held by John Hancock Mutual Life Insurance Company, these documents being described in eight typewritten pages which itemized in specific detail various books, papers, documents, writings and memoranda of telephone calls relating to each of...