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Palmer v. Fisher

December 9, 1955

JOHN M. PALMER, PLAINTIFF-APPELLEE,
v.
ALICE BRADLEY FISHER, AS EXECUTRIX OF THE ESTATE OF FREDERICK T. FISHER, DECEASED, DEFENDANT-APPELLANT, PETITION OF THOMAS F. PIERCE, PETITIONER-APPELLEE.



Author: Swaim

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SWAIM, Circuit Judge.

The appeal is taken from a single order of the United States District Court for the Northern District of Illinois, Eastern Division. That order: (1) quashed a subpoena duces tecum, (2) suppressed a deposition taken under the authority of said subpoena, (3) directed the appellant to deliver into court for destruction all copies of the deposition in the possession, custody or control of the appellant or her employees, agents or attorneys, and (4) denied appellant's motion to hold the appellee, Thomas F. Pierce, in contempt for failing to comply with the subpoena.

The appellant herein, Alice Bradley Fisher, is the defendant in an action in the United States District Court for the Southern District of Florida, Ocala Division, by one John M. Palmer, who has taken no part in this appeal. The Florida case involves, among other things, the business records and papers revealing financial information of a corporation entitled Black Ranches, Inc.

The appellee, Thomas F. Pierce, is a certified public accountant, who as an employee of an accounting firm had audited the books of Black Ranches, Inc., and had thereafter made a written report concerning the audit. Mrs. Fisher's attorney was anxious to secure Pierce's testimony regarding the audit and his report thereon, and to inspect the various books, papers and documents which Pierce had examined and used in making the audit - all for use in the Florida case. Since Pierce lives in Chicago, Mrs. Fisher's attorney secured a subpoena duces tecum from the United States District Court for the Northern District of Illinois, Eastern Division, directing Pierce to give his deposition, and to produce a long list of books, papers, documents, certificates and other papers of Black Ranches, Inc., all as described in the subpoena.

Pierce claims that on January 11, 1955, he was invited to the Chicago office of Mrs. Fisher's attorney, ostensibly to discuss the Florida case; that on his arrival at that office he was served with the subpoena and told that he would, then and there, have to testify under oath. After Pierce was sworn, the attorney began taking his deposition. At that time Pierce apparently made no definite objection to the taking of his deposition. After about two hours of interrogation Pierce had to leave and January 19, 1955, was set as the date for completing the deposition. According to the allegations of the attorney in the petition to hold Pierce in contempt, Pierce agreed on January 11 to bring with him on January 19 the various books, papers and documents concerning Black Ranches, Inc., which were described in the subpoena duces tecum.

Prior to January 19, 1955, Pierce consulted his own attorneys who told him that under Illinois law he was privileged against testifying as a C.P.A. and, further, that he was not required to testify because proper notice had not been given to the opposing parties as required by Rule 30(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. When Pierce returned to finish his deposition, his attorneys accompanied him and advised him not to testify concerning his client, Black Ranches, Inc., and to refuse to produce the documents requested.

Mrs. Fisher's attorney filed a motion asking that Pierce be held in contempt of court for refusing to comply with the subpoena. Mr. Pierce filed a petition asking that the subpoena be quashed, that the deposition be suppressed, and that Mrs. Fisher and her attorney be ordered to bring all their copies of the deposition into court to be destroyed. The court below denied Mrs. Fisher's motion and granted all the prayers of the witness Pierce's petition. The court's action was based on two grounds: insufficient notice of the taking of the deposition, and the privilege accorded Pierce as a C.P.A.

Mrs. Fisher appealed from the District Court's order, and Pierce moved to dismiss the appeal. This court ordered that the motion to dismiss be heard with the merits of the case and the two were taken under advisement together. We shall first consider Pierce's motion to dismiss.

In his motion and brief thereon Pierce seems to assume that his motion to quash the subpoena and the motion to suppress the deposition should be treated the same. Or he may think that the suppression and destruction of a deposition should follow as a matter of course in the same proceeding in which a subpoena is quashed. Pierce seeks to convince us that none of the District Court's order is appealable by citing cases holding that an order granting or denying a subpoena or a motion to quash a subpoena is interlocutory and not appealable (e.g., Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783; National Nut Co. of California v. Kelling Nut Co., 7 Cir., 134 F.2d 532). We recognize this well established rule concerning subpoenas, but we do not think it applicable to an order suppressing a deposition. We have found no case involving an order of a trial court for the destruction of a deposition.

The best discussion we have found on the appealability of a summary proceeding on a motion to suppress a deposition is by Mr. Justice Brandeis in Cogen v. United States, 278 U.S. 221, 49 S. Ct. 118, 73 L. Ed. 275. It is a criminal case, but it is a clearly reasoned opinion touching this area.

Cogen had been indicted for violating the National Prohibition Act, 41 Stat. 305. He applied to the court in which he had been indicted for the return of certain papers which had been taken from him without a warrant, and to suppress the evidence obtained therefrom. The application was denied, and Cogen appealed the denial before the main trial had begun. The Circuit Court of Appeals held that it had no jurisdiction to review the order, and the Supreme Court affirmed that holding. In the course of his opinion Mr. Justice Brandeis said:

"In essence, the motion resembles others made before or during a trial to secure or to suppress evidence, such as applications to suppress a deposition * * *." 278 U.S. at pages 223-224, 49 S. Ct. at page 119. In that case the Court also said, 278 U.S. at page 225, 49 S. Ct. at page 119:

"Motions for the return of papers and the suppression of evidence made in the cause in advance of the trial, under this rule of practice, must be differentiated from independent proceedings brought for a similar purpose. Where the proceeding is a plenary one, like the bill in equity in Dowling v. Collins, 5 Cir., 10 F.2d 62, its independent character is obvious; and the appealability of the decree therein is unaffected by the fact that the purpose of the suit is solely to influence or control the trial of a pending criminal prosecution. Applications for return of papers, or other property may, however, often be made by motion or other summary proceeding, by reason of the fact that the person in possession is an officer of the court. [Citations.] Where an application is filed in that form, its essential character and the circumstances under which it is made will determine whether it is an independent proceeding or merely a step in the trial of the criminal case. The independent character of the summary proceedings is ...


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