JOSEPH METZ, PETITIONER,
v.
MALISSA C. SMITH, UNMARRIED, RESPONDENT
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In this certiorari review, the court addressed whether a plaintiff could compel discovery of documents from a defendant through a notice to appear at a deposition with a directive to produce documents, without following the proper procedural requirements. The court held that such discovery must be accomplished through a motion showing good cause or a subpoena duces tecum, and quashed the discovery order.
A notice to produce documents attached to a deposition notice is an insufficient method of discovery. Production of documents must be obtained either through a written motion showing good cause under rule 1.28 or through a subpoena duces tecum under rule 1.34. The discovery order was therefore quashed.
“Production of papers and documents for discovery can be had by a written motion showing good cause, under rule 1.28, F.R.C.P., or, where there is good cause, by a subpoena duces tecum under rule 1.34, F.R.C.P. The notice, which was treated as a motion to produce, contained no showing of good cause, and, therefore, was insufficient.”
Establishes the two proper procedures for document discovery and the defect in plaintiff's approach—lack of showing good cause.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued defendant for damages arising from an automobile accident allegedly caused by an authorized driver of defendant's vehicle. Defendant ad…
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On certiorari we review a discovery order in a law action. Petitioner was the defendant and respondent was the plaintiff below, and they will be referred to as such herein. Plaintiff sued for damages for personal injuries received in an automobile accident, alleging an authorized driver of defendant’s car negligently caused a collision. In a second count, a higher degree of negligence was alleged as a basis upon which to seek punitive damages. Defendant answered, admitting owning the car and lending it to the driver, but denying other allegations. Defendant averred the driver’s authorization was limited; that the driver had exceeded it, and had converted the vehicle.
Plaintiff served upon defendant a notice to appear for a pre-trial deposition. The notice also directed him to bring certain documents and data including such as would show his insurance relating to the car and his assets, and all written communications made by or to him relating to the accident. Defendant moved for protection under rule 1.24(b), F.R.C.P., 30 F.S.A., objecting to the “notice” to produce, and claiming benefit of rule 1.28, F.R.C.P., which provides for production of documents for discovery on motion showing good cause. On hearing, the trial judge treated the notice as a motion to produce, and denied the protection motion. All items called for in the notice were ordered to be produced.
Defendant’s objection to the procedure employed by plaintiff here was valid. Production of papers and documents for discovery can be had by a written motion showing good cause, under rule 1.28, F.R. C.P.,1 or, where there is good cause, by a subpoena duces tecum under rule 1.34, F.R. C.P.2 The notice, which was treated as a motion to produce, contained no showing of good cause, and, therefore, was insufficient.3
Certiorari is granted and the discovery order to which it is directed is quashed. On thus disposing of this matter we preter-mit determination of other questions raised.
It is so ordered.
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Citator
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Pembroke Park Lakes, Inc. v. High Ridge Water Co., 186 So. 2d 85 (Fla. 3d DCA 1966)…d promptly object by motion prior to the return date, and thereupon before compliance with the subpoena duces tecum shall be required, the party causing its issuance must show good cause at a hearing on such motion. See: Metz v. Smith, Fla.App.1962, 141 So. 2d 617; McKinley & Company v. Arpin, Fla.App.1962, 143 So. 2d 216. Compare Joseph L. Lee, Inc. v. Margon Corp., S.D.N.Y.1956, 18 F.R.D. 390; Shepherd v. Castle, W.D.Mo. 1957, 20 F.R.D. 184; Korman v. Shull, W.D. Mich. 1960, 184 F.Supp. 928; Ostow & Jacobs,…
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McKINLEY & Co. v. Arpin, 143 So. 2d 216 (Fla. 3d DCA 1962)…n in any subsequent cause on the insurance policy, it being apparent from the notice that the information sought was directed to the alleged “loss” under the policy. This court has recently pointed [*218] out, in the case of Metz v. Smith, Fla.App., 141 So. 2d 617 that the appropriate method for production of documents from a party is by written motion showing good cause under F.R.C.P. 1.28. Therefore, the order under .review is reversed with directions to enter an appropriate protective order. Reversed.…
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Franklyn S., Inc. v. Riesenbeck, 166 So. 2d 831 (Fla. 3d DCA 1964)…s tecum to a party under 1.34 F.R.C.P. appears to have been given approval by several Florida cases. See Brooker v. Smith, Fla.App.1959, 108 So. 2d 790; Cooper v. Fulton, Fla.App.1960, 117 So. 2d 33, 35, 83 A.L.R.2d 297; Metz v. Smith, Fla.App.1962, 141 So. 2d 617. We do not deal with or here decide whether one who seeks to have a subpoena duces tecum issued to a party and returnable at trial needs to show good cause (as is required under rule 1.28 F.R.C.P. of a motion for an order to produce), either as a c…1 / 2
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- Brooker v. Smith, 108 So. 2d 790 (Fla. 2d DCA 1959)