On November 7, 2013, the Florida Supreme Court issued a unanimous, 25-page opinion in favor of firm client, CMI, Inc., the Kentucky-based manufacturer of the Intoxilyzer brand breath-alcohol testing instrument used in Florida. The case is Ulloa v. CMI, Inc., __ So. 3d __, 2013 WL 5942299 (Fla. Nov 07, 2013). Criminal defendants throughout the state had served hundreds of subpoenas duces tecum on CMI’s registered agent in Florida, demanding that CMI surrender the source code for the Intoxilyzer simply by “sending it to defense counsel.” CMI repeatedly objected and moved to quash the subpoenas arguing, in relevant part, that it could not be subpoenaed through its registered agent and that defendants had to comply with Florida’s Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. This concerted effort by the criminal defense bar forced CMI to litigate in county and circuit courts throughout the entire state instead of defending against the subpoenas in Kentucky, as the act contemplated.
After five years of extended litigation in dozens of proceedings involving hundreds of DUI defendants, as well as frustrating losses in county courts (and even one at the Second District Court of Appeal), the litigation strategy developed by Appellate Practice Group Chair Edward G. Guedes finally paid off when the Florida Supreme Court issued its decision, adopting every argument presented by the Firm. Ed drafted the briefs, with the assistance of Firm Partners John J. Quick and Laura K. Wendell, and argued the case at the Florida Supreme Court.
The case was an issue of first impression before the Court, which ruled that a Florida trial court does not have the inherent subpoena power to compel an out-of-state corporate witness to produce documents or other corporate assets in Florida when those documents or assets are located outside the state. Consequently, the subpoenas served on the corporation’s registered agent in Florida were declared invalid. The Court concluded that in order to compel such production from out-of-state corporations in criminal proceedings, a defendant was required to comply with the requirements of the uniform law, thus requiring the defendant to appear before the courts in Kentucky and obtain their approval. Absent such compliance, neither Florida statutes nor the rules of criminal procedure permitted the service of the subpoenas duces tecum on CMI’s registered agent. The decision has significant implications for out-of-state corporations doing business in Florida, as well as Florida corporations, which do business in other states and might be subjected to reciprocal treatment in those jurisdictions.
The Supreme Court disapproved the Second District Court of Appeal’s adverse decision in CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010), as well as the Third District Court of Appeal’s earlier decision in General Motors Corp. v. State, 357 So. 2d 1045 (Fla. 3d DCA 1978), which the DUI defendants had relied on repeatedly. Instead, the Court approved the Fifth District Court of Appeal’s underlying decision, which had certified conflict with Landrum.
Author(s): Edward G. Guedes
