On September 16, 2011, Florida’s Fifth District Court of Appeal handed down a decision with substantial significance for out-of-state corporations doing business or looking to do business in Florida. In a case involving Kentucky-based, CMI, Inc., the manufacturer of the Intoxilyzer breath alcohol testing instrument used in Florida, DUI defendants had attempted to subpoena the instrument’s source code by serving the company’s registered in Florida and without complying with the requirements of Florida’s Uniform Law to Secure the Attendance of Witnesses from Within and Without the State in Criminal Proceedings (Uniform Law). The Uniform Law, which has been enacted by all 50 states, requires that the judiciary of a witness’ home state be allowed to participate in determining the validity of any effort to compel one of its citizens to appear and provide testimony or documentary evidence in another jurisdiction.
The defendants in this case had argued that the statutory requirements were not mandatory and that the mere existence of a corporate registered agent in Florida meant that an out-of-state witness could be compelled by a Florida court to produce valuable corporate assets without any input from the judiciary of the witness’ home state. Just one year ago, Florida’s Second District Court of Appeal had concluded — in response to a certiorari petition from CMI — that it would not interfere with a trial court’s authority to exercise such extra-territorial jurisdiction simply because the trial court had relied on a 1973 Florida appellate decision that had since been wholly rejected by all other Uniform Law jurisdictions.
The Fifth District declined to follow the Second District’s lead and instead adopted the arguments advanced by CMI’s appellate team, led by Edward G. Guedes. The Fifth District concluded, first, that the Uniform Law applies to attempts to subpoena only documents from an out-of-state witness, and for the first time ever in Florida, also concluded that the role of a corporate registered agent does not extend to serving as a conduit for witness subpoenas. In reaching these conclusions, the Fifth District aligned itself with the courts of all other Uniform law jurisdictions that had addressed the same issue, but noted apparent conflict with the Second District.
You can read a copy of the Fifth District’s decision here.
Author(s): Edward G. Guedes
