did I forget anything? (except a letter to AT&T)
IN THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT IN AND FOR
COUNTY, FLORIDA
FAMILY DIVISION CASE NO.
Petitioner/Former wife,
And
Respondent/Former husband
NOTICE OF MOTION FOR ORDER QUASHING SUBPOENA
AND STAYING DEPOSITION DUCES TECUM
MOTION FOR PROTECTIVE ORDER
To Petitioner, attorney of record for Petitioner and to Records Custodian of AT&T Corporation c/o CT Corporation System:
PLEASE TAKE NOTICE that at 8:45 a.m., on June 7, 2001 or as soon after as the matter can be heard, before the Honorable , one of the Judges of the above-styled Court, at the County Courthouse, , Florida, Respondent will move the court for an order quashing the subpoena for deposition duces tecum served on the Records Custodian of AT&T Corporation, and staying the deposition pending determination of the motion. Respondent will also move for a Protective Order on behalf of .
The deposition is scheduled to be held on June 13th, 2001 at 3:00 p.m., at , Florida. This motion is made on the grounds that the records sought are privileged, that the person in whose name the records are kept is a non-party to this action and that attorneys for the Petitioner have failed to show reasonableness in showing that the request to produce is related to any actual issue in the case. Further, requests for information of this nature violate the Florida Constitutional protections inherent in Article I, Paragraph 12: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable interception of private communications.”
The motion will be based on this notice of motion, the attached memorandum of points and authorities, the declaration of , the record and files of this case, and any further oral or documentary evidence introduced at the hearing of this motion.
Dated: June 5, 2001
_______________________
, pro se
IN THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT IN AND FOR
COUNTY, FLORIDA
FAMILY DIVISION CASE NO. CD
Petitioner/Former wife,
And
Respondent/Former husband
MOTION FOR ORDER QUASHING SUBPOENA
AND STAYING DEPOSITION DUCES TECUM
Former husband / Respondent , pro se, hereby moves this Court for entry of an Order Quashing Subpoena and Staying Deposition Duces Tecum. To support Motion to Dismiss, Respondent herein provides Points and Authorities and states:
1. On or about May 30, 2001, attorneys for Petitioner/ Former Wife served the Subpoena on the Records Custodian of AT&T Corporation,
2. The deposition is scheduled to take place on June 16, 2001 at 3 p.m. at the offices of the attorneys for the Petitioner, located at
3. Pursuant to Florida Statute Chapter 90 Evidence Code, Respondent submits it is proper for judicial notice of this action be taken. Respondent submits that the Subpoena served is overbroad in scope and an invasion of privacy. Attachment “A” of Petitioner’s document requests “all records of outgoing calls from the following telephone number: , as well as any other numbers registered in the name of , for the periods from April 25, 2001 to present.”
4. Respondent does not maintain telephone service in his name and submits that a subpoena for telephone records from that address is improper and an invasion of the privacy of all of the residents and guests at that address. is the fiancée of Respondent and is not party to any current case before the court. Respondent has filed a separate Motion for Protective Order on behalf of his fiancée.
Page Two / CD FC
5. Respondent further asserts that under recognized Florida Rules of Civil Procedure 1.280, the information requested is privileged or subject to protection as trial preparation material. The nature of discovery of the communications is a clear intrusion into private affairs, regardless of whether or not there is something discoverable in the records. Personal privacy is always paramount, and cannot be intruded upon unless there is some issue of great, and public, importance; so much so that the discovery outweighs the right of privacy. The issues currently before the court in this case hold no such premises that would justify such an intrusion into the privacy of the residents of the home. Records of phone calls placed from the residence are not indicated to be relevant to the subject matter of the case and therefore cannot be reasonably calculated to lead to discovery of admissible evidence.
6. Equally as important, counsel for the Petitioner has made no claim, as required under law, to show that the requested production of records is related to any actual issue in the cause.(HTP, Ltd. V Lineas Aereas Costarricenses, S.A. (1994, Fla Ap D3) 634 So 2d 724, 19 FLW D659) In the absence of such claim, Respondent submits, the court cannot require discovery. Counsel for the Petitioner must show that the matter to be discovered appears to be reasonably calculated to lead to the discovery of admissible evidence. (Weyant v Rawlings (1980, Fla App D2) 389 So 2d 710
7. To further evidence his contention, Respondent notes that in Palmer v. Servis 1981, Fla App D5) 393 So 2d 653) “in requesting discovery, the subpoena duces tecum should not become a search warrant, requiring a witness to produce broad categories of items that the party can then search to find what may be wanted. The desired documents, books or papers should be designated with sufficient particularity so as to affirmatively suggest their existence and materiality, and described so that any reasonable person could identify them.” Respondent submits that a blanket subpoena for “all outgoing phone records” which would pertain to a multiplicity of telephone users, including residents and guests of the home, does not meet the requirements set forth in Palmer v. Servis. The privacy of the multiple users of the telephone assigned that number at that residence must be maintained and protected.
8. The authors of the 2001 Florida Rules of Court noted (in 1967), that under Rule 1.410(b)(d) “if a party desires the production of documents or tangible things under the control of a party or witness for use at the hearing or trial, good cause still must be shown” Further, a subpoena duces tecum generally reaches all documents or tangible things under the control of the person or corporation ordered to produce, except for questions of privilege and unreasonableness.”
9. No claim exists by Petitioner as to the communication records sought being necessary to the Petitioner’s case as provided for by Florida Statute 90.510.
Page Three / CD
10. Respondent has made a good faith effort to persuade Counsel for the Petitioner to agree to limit the scope and nature of the subpoena, no response has been forthcoming.
Therefore, Respondent/Former Husband respectfully requests the court to recognize under Florida Rule 1.410 that the Petitioner’s requests are unreasonable and oppressive and enter an order quashing the subpoena and staying the deposition of the AT&T Corporation.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 5th day of June, 2001, to: By: _______________________________
, pro se
State of Florida
County of
Sworn to (or affirmed) and subscribed before me on ________________________2001
By ______________________________
________________________________________
Notary Public-State of Florida
________________________________________
Print, type or stamp commissioned name of notary
X one only
____ Personally known
____ Produced identification
Type of identification produced_________________________
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT
IN AND FOR COUNTY, FLORIDA
Petitioner/Former wife,
FAMILY DIVISION CASE NO. FC
And
Respondent/Former husband
ORDER ON RESPONDENT/FORMER HUSBAND’S MOTION TO QUASH SUBPOENA AND STAYING DEPOSITION
THIS CAUSE, having come before on Respondent / Former
Husbands Motion to Quash Former Wife’s Subpoena For Deposition Duces Tecum
serviced upon the AT&T Corporation for certain telephone records, and being otherwise
advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that:
1. The Former Husband’s Motion to Quash is hereby GRANTED. __________
__________________________________________________________________
_________________________________________________________________.
2. The Deposition Duces Tecum is hereby STAYED. _____________________
DONE AND ORDERED at County, Florida, this _____ day of
June, 2001.
_____________________________
CIRCUIT JUDGE
Copies furnished to:
, pro se (Former Husband)
, Esq. (Attorney for Former Wife)
Records Custodian of AT&T Corporation
IN THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT IN AND FOR
COUNTY, FLORIDA
FAMILY DIVISION CASE NO.
Petitioner/Former wife,
And
Respondent/Former husband
DECLARATION IN SUPPORT OF MOTION TO QUASH SUBPOENA AND STAY DEPOSITION DUCES TECUM
I hereby state that my name is
I make this declaration in support of Respondent’s motion for an order quashing the Petitioner’s subpoena and staying the deposition duces tecum issued to the AT&T Corporation for records of telephone calls originating from the household indicated above and from the telephone number indicated above.
AT&T Corporation’s deposition is scheduled for June 16, 2001 at 3 p.m. at the law offices of Florida.
On or about June 5, 2001, Respondent served attorneys for the Petitioner with written objections to the deposition notice. Briefly, Respondent objected to the deposition notice because the records sought are privileged, that the person in whose name the records are kept is a non-party to this action and that attorneys for the Petitioner have failed to show reasonableness in showing that the request to produce is related to any actual issue in the case.
I certify that I am the person in whose name the telephone number referenced above is
registered. I also state that I am not a party to any legal actions involving the Petitioner and the Respondent. I further state that I am the fiancée of the Respondent and that we
do live together at the above-mentioned address. The telephone number in use at the residence is the only one in existence and is used by all members of my family and my
houseguests.
I declare under penalty of perjury under the laws of the State of Florida that the foregoing is true and correct.
_______________________________________
Dated _________.
IN THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT IN AND FOR
COUNTY, FLORIDA
FAMILY DIVISION CASE NO. CD
Petitioner/Former wife,
And
Respondent/Former husband
MOTION FOR PROTECTIVE ORDER LIMITING SCOPE OF DISCOVERY AND RESTRICTING EXTENT OR USE OF DISCOVERY
1. On or about May 30, 2001, attorneys for Petitioner/ Former Wife served a Subpoena on the Records Custodian of AT&T Corporation, c/o
2. The deposition is scheduled to take place on June 16, 2001 at 3 p.m. at the offices of the attorneys for the Petitioner, located at
3. Respondent/Former Husband, pro se, for and on behalf of and her minor children, hereby moves this Court for a Protective Order limiting the scope of discovery, by granting Respondent’s motion to quash the subpoena for discovery of her telephone records and issuing a protective order prohibiting future attempts at discovering personal and private records, communications, books, statements, etc., without just cause and/or court order.
4. This motion is made on the ground that the burden, expense, or intrusiveness of the proposed discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The subpoena of the telephone records of and her minor children ignores their protected rights of privacy and is needlessly intrusive.
5. is not a party to any legal matters or actions between the Petitioner and the Respondent, therefore the subpoena is an unwarranted intrusion into private affairs. Cohabitation alone does not open her books and records to scrutiny in this proceeding, (see Smith v. Bloom, 506 So.2d 1173, Fla App 4 Dist. 1987), neither has any basis been established or claimed by Petitioner that would require discovery of said books and records. Respondent submits on behalf of that the court cannot require discovery when the request to produce is not related to any actual issue in the case. (HTP, Ltd. V Lineas Aereas Costarricenses, S.A. (1994), Fla App D3) 634 So 2d 724, 19 FLW D659) Additionally, per Plevy v. Plevy (1983, Fla App D4) 438 So 2d 1053) as there is no pleading currently pending, then there is no right to discover.
Page Two /
The Petitioner is prohibited, in light of Rule 1.290, from “fishing” for
some ground for bringing suit; discovery before action is commenced is improper.
6. It is proper to allege harrassment by the Petitioner of by the nature of the request for records of this nature, in that the discovery has no relationship to the case. (Krypton Broadcasting of Jacksonville v MGM-Pathe Communications Co. (1993, Fla App , the court in which the action is pending may make D1) 629 So 2d 852, 18 FLW D1092 . Pursuant to Rule 1.280 protection may be sought from annoyance, embarrassment oppression or undue burden or expense as a result of unfair and inappropriate discovery.
7. No verified petition has been filed by the Petitioner indicating that is or will be an expected adverse party, nor has subject matter being sought by the deposition duces tecum been disclosed as per rules set forth in 1.290. As well, no claim exists by Petitioner as to the communication records sought being necessary to the Petitioner’s case as provided for by Florida Statute 90.510.
Therefore, Respondent, on behalf of respectfully moves this court for a Protective Order.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 5th day of June, 2001, to:
By: _______________________________
, pro se
State of Florida
County of
Sworn to (or affirmed) and subscribed before me on ________________________2001
By ______________________________
________________________________________
Notary Public-State of Florida
________________________________________
Print, type or stamp commissioned name of notary
X one only
____ Personally known
____ Produced identification
Type of identification produced_________________________
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT
IN AND FOR COUNTY, FLORIDA
Petitioner/Former wife,
FAMILY DIVISION CASE NO.
And
Respondent/Former husband
MOTION FOR PROTECTIVE ORDER
THIS CAUSE, having come before Judge on Respondent / Former
Husbands Motion on behalf of for a Protective Order, and being
otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that:
3. The Motion for Protective Order is hereby GRANTED. __________
__________________________________________________________________
_________________________________________________________________.
DONE AND ORDERED at County, Florida, this _____ day of
June, 2001.
_____________________________
CIRCUIT JUDGE
Copies furnished to:
pro se (Former Husband)
, Esq. (Attorney for Former Wife)
Records Custodian of AT&T Corporation
[Edited by jyoung on 06-03-2001 at 11:33 AM]
