Florida Supreme Court Strikes Down Subpoenas Issued in Criminal Case to Florida Agent for Out-of-State Corporation

By Herron Bond
In Ulloa v. CMI, Inc. (SC11-2291), the Florida Supreme Court considered whether a state court has the authority to compel a nonparty, out-of-state corporation to produce materials in a criminal case by issuing a subpoena to that corporation’s registered agent in Florida outside the provisions of chapter 942, Fla. Stat.
This question arose when defendants in county court DUI cases sought to obtain the source codes for a breathalyzer machine manufactured by Kentucky-based CMI, Inc. The trial courts issued subpoenas ordering CMI’s registered agent in Florida to produce the codes, which were kept in Kentucky. After its motions to quash the subpoenas were denied, CMI sought certiorari relief before the circuit court, arguing that a subpoena against CMI is only proper if the defendants engage the mechanisms of the Uniform Law (chapter 942, Fla. Stat.), which establishes the process for subpoenaing nonparty, out-of-state witnesses. The circuit court upheld the subpoenas after reviewing CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010), in which the Second District ruled that the Uniform Law does not apply to subpoenas merely seeking the production of documents from a local agent of an out-of-state witness, as opposed to subpoenas for documents and witness testimony. The Fifth District Court of Appeals reversed the circuit court, siding with CMI, and the Florida Supreme Court granted cert to resolve the conflict with Landrum.
In its opinion, the Court clarified the patchwork of rules related to service of process, personal jurisdiction, and subpoena power. Service of process against an agent, which is proper under section 48.081(3)(a), Fla. Stat., only gives notice of the lawsuit to the principal. Service of process does not also grant the court personal jurisdiction over a party when jurisdiction does not otherwise exist. Personal jurisdiction is improper in this case because “the subpoena power of a Florida court over a person or legal entity which is not a party in a lawsuit does not extend beyond state lines.”
According to the Court, utilizing the Uniform Law is the only way to compel CMI to disclose the source codes. In the interest of maintaining consistency with sister states and legislative intent, the Court ruled that the Uniform Law controls any subpoena against an out-of-state nonparty witness in a criminal case, even when the subpoena is limited to the production of documents.
Under the Uniform Law, the court must certify that the out-of-state party is a material witness and a court in the witness’s home state may compel the witness to comply. The defendants in these cases did not engage in this process. Thus, the Court invalidated the Second DCA’s ruling in Landrum and quashed the subpoenas for failing to conform with the Uniform Law.