On May 31, 2017 a
Motion-Secondary
was filed
involving a dispute between
Ashraf Ismail,
and
Zaid Alqawsmi,
for CA - Breach of Agreement/Contract
in the District Court of Orange County.
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Filing #82514431 E-Filed 12/21/2018 10:01:43 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY FLORIDA
CASE NO. 2017-CA-004944-0
ASHRAF ISMAIL,
an individual,
Plaintiff,
vs.
ZAID ALQAWSMI,
an individual,
Defendant
/
OBJECTION TO SUBPOENA DUCES TECUM WITHOUT DEPOSITION
COMES NOW the Plaintiff ASHRAF ISMAIL, by and through his
respective counsel, and files this, his Objection to Defendant’s
Subpoena Duces Tecum Without Deposition to CIBC BANK USA records
custodian and would say:
1 Defendant's request for discovery from a third party in
this action (specifically the records of an individual who is not
a party to this action, Ahmed El Sherbiny) is invasive of the
privacy of Ahmed El Sherbiny as well at the Plaintiff, Ashraf
Ismail, and as such is overly broad and seeks discovery of
documents and other private information of parties that has no
relevance to this action.
2 Plaintiff is or will be producing documents that are
listed in his Witness and Exhibit List filed in compliance with
the Court’s Order Setting Trial that constitute all of the
transactions between Ahmed El Sherbiny and Ashraf Ismail that could
be derived from the subpoena that are directly related to
Plaintiff's claim against the Defendant.
3 As such, Defendant's subpoena duces tecum is not only
overly broad but is unnecessary, in view of the fact that Plaintiff
has listed the exhibits that are material and relevant in the
account relating to America Wireless, LLC and relating to
Plaintiff's claim against the Defendant.
4 There are no other transactions in the account between
Ahmed El Sherbiny, Ashraf Ismail or America Wireless, LLC that
directly relate in any way, shape or fashion to Plaintiff's cause
of action against the Defendant.
5 Ahmed El Sherbiny is not a party to this action (which is
already set for trial) and has no direct involvement to any
affirmative defenses and/or claims made by Plaintiff against
Defendant.
6 The granting of a subpoena for the records of Ahmed El
Sherbiny from CIBC Bank USA, a nonparty entity, for the records of
Ahmed El Sherbiny, a nonparty to this action, prevents Ahmed El
Sherbiny from objecting to the subpoena duces tecum, as he has not
been provided due process to protect the privacy of his personal
and financial records.
7 financial information is protected
As a general rule,
from discovery by the right of privacy established in Article I,
Section 23 of the Florida Constitution. (Rosen v. McCobb, 192 So.3d
576, 578 (Fla. 4th DCA 2016)) The financial records of a party to
litigation (or in this case a nonparty to litigation) generally
"are not discoverable unless the documents themselves or the status
which they evidence is somehow at issue in the case." (Board of
Trustees of the Internal Improvement Trust Fund v. American
Educational Enterprises, LLC 99 So.3d 450,458 (Fla. 2012) (quoting
Aspex Eyewear Inc. v Ross, 778 So.2d 481, 481-82 (Fla. 4th DCA
2001)).
8 Nothing in Plaintiff's cause of action or Defendant's
affirmative defenses justify the extensive discovery surrounding
a non-party’s financial records, especially since the Plaintiff in
this action has voluntarily listed the material banking matters
sought in this request for production and has listed same in his
Witness and Exhibit List.
9 Based on the above and foregoing, the Defendant's request
for production is insufficiently sufficient to constitute a proper
request for production. (Palmer v. Servis, 393 So.2d 653,654 (Fla.
5th DCA 1981); Fla. R. Civ. PB 1.310 (b) ( ), stating that a notice
to produce documents at deposition is governed by Rule 1.350).
WHEREFORE, Plaintiff objects to the issuance of the subpoena,
(as well as the subpoena without deposition itself) of CIBC BANK,
USA dated January 28, 2019 and prays that the Court enter an order
prohibiting the notice of production from nonparty of same date
and the issuance of the subpoena and that the Clerk of Court attach
the notice of production of nonparty, and that the Court grant
such other and further relief as the Court deems equitable and
just.
I HEREBY CERTIFY that a true and correct copy of the foregoing
was furnished by U.S. Mail and/or electronic delivery this A
day of December, 2018 to the parties named below.
aC O_O
MIKEL W. CARPENTER, ESQ.
126 E. Jefferson St.
Orlando FL 32801
(407) 843-3743
mike@mikelwcarpenterpa.com
mary@mikelwcarpenterpa.com
Florida Bar No. 0224057
Attorney for Plaintiff
Scott Smothers, Esquire
523 Wekiva Commons Circle
Apopka FL 32712
scott@smotherslawfirm.com
service@smotherslawfirm.com
Document Filed Date
December 21, 2018
Case Filing Date
May 31, 2017
Category
CA - Breach of Agreement/Contract
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Filing #82514431 E-Filed 12/21/2018 10:01:43 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY FLORIDA CASE NO. 2017-CA-004944-0 ASHRAF ISMAIL, an individual, Plaintiff, vs. ZAID ALQAWSMI, an individual, Defendant / OBJECTION TO SUBPOENA DUCES TECUM WITHOUT DEPOSITION COMES NOW the Plaintiff ASHRAF ISMAIL, by and through his respective counsel, and files this, his Objection to Defendant’s Subpoena Duces Tecum Without Deposition to CIBC BANK USA records custodian and would say: 1 Defendant's request for discovery from a third party in this action (specifically the records of an individual who is not a party to this action, Ahmed El Sherbiny) is invasive of the privacy of Ahmed El Sherbiny as well at the Plaintiff, Ashraf Ismail, and as such is overly broad and seeks discovery of documents and other private information of parties that has no relevance to this action. 2 Plaintiff is or will be producing documents that are listed in his Witness and Exhibit List filed in compliance with the Court’s Order Setting Trial that constitute all of the transactions between Ahmed El Sherbiny and Ashraf Ismail that could be derived from the subpoena that are directly related to Plaintiff's claim against the Defendant. 3 As such, Defendant's subpoena duces tecum is not only overly broad but is unnecessary, in view of the fact that Plaintiff has listed the exhibits that are material and relevant in the account relating to America Wireless, LLC and relating to Plaintiff's claim against the Defendant. 4 There are no other transactions in the account between Ahmed El Sherbiny, Ashraf Ismail or America Wireless, LLC that directly relate in any way, shape or fashion to Plaintiff's cause of action against the Defendant. 5 Ahmed El Sherbiny is not a party to this action (which is already set for trial) and has no direct involvement to any affirmative defenses and/or claims made by Plaintiff against Defendant. 6 The granting of a subpoena for the records of Ahmed El Sherbiny from CIBC Bank USA, a nonparty entity, for the records of Ahmed El Sherbiny, a nonparty to this action, prevents Ahmed El Sherbiny from objecting to the subpoena duces tecum, as he has not been provided due process to protect the privacy of his personal and financial records. 7 financial information is protected As a general rule, from discovery by the right of privacy established in Article I, Section 23 of the Florida Constitution. (Rosen v. McCobb, 192 So.3d 576, 578 (Fla. 4th DCA 2016)) The financial records of a party to litigation (or in this case a nonparty to litigation) generally "are not discoverable unless the documents themselves or the status which they evidence is somehow at issue in the case." (Board of Trustees of the Internal Improvement Trust Fund v. American Educational Enterprises, LLC 99 So.3d 450,458 (Fla. 2012) (quoting Aspex Eyewear Inc. v Ross, 778 So.2d 481, 481-82 (Fla. 4th DCA 2001)). 8 Nothing in Plaintiff's cause of action or Defendant's affirmative defenses justify the extensive discovery surrounding a non-party’s financial records, especially since the Plaintiff in this action has voluntarily listed the material banking matters sought in this request for production and has listed same in his Witness and Exhibit List. 9 Based on the above and foregoing, the Defendant's request for production is insufficiently sufficient to constitute a proper request for production. (Palmer v. Servis, 393 So.2d 653,654 (Fla. 5th DCA 1981); Fla. R. Civ. PB 1.310 (b) ( ), stating that a notice to produce documents at deposition is governed by Rule 1.350). WHEREFORE, Plaintiff objects to the issuance of the subpoena, (as well as the subpoena without deposition itself) of CIBC BANK, USA dated January 28, 2019 and prays that the Court enter an order prohibiting the notice of production from nonparty of same date and the issuance of the subpoena and that the Clerk of Court attach the notice of production of nonparty, and that the Court grant such other and further relief as the Court deems equitable and just. I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail and/or electronic delivery this A day of December, 2018 to the parties named below. aC O_O MIKEL W. CARPENTER, ESQ. 126 E. Jefferson St. Orlando FL 32801 (407) 843-3743 mike@mikelwcarpenterpa.com mary@mikelwcarpenterpa.com Florida Bar No. 0224057 Attorney for Plaintiff Scott Smothers, Esquire 523 Wekiva Commons Circle Apopka FL 32712 scott@smotherslawfirm.com service@smotherslawfirm.com