## Facts

- A principal of West World Telecommunications Systems, Inc. complained that former employee David Heddon was misappropriating the company’s trade secrets.
- The State investigated a potential violation of Florida’s trade secret theft statute, Fla. Stat. § 812.081 (1999).
- During the investigation, the State subpoenaed records from Heddon’s corporation, which he produced.
- The State then served an investigative subpoena on Heddon’s former attorney, Stephen Artman, demanding all documents (including West World vendor/customer lists) in the attorney’s possession that were obtained from Heddon.
- The attorney acknowledged the prior representation and that he had a file, but asserted attorney-client privilege as to the contents and moved to quash the subpoena.
- The circuit court denied the motion to quash.
- Heddon sought certiorari review, arguing that compelling production through counsel would violate the Fifth Amendment act-of-production protection and that attorney-client privilege barred the subpoena.

## Issues

1. Whether enforcing an investigative subpoena against a criminal suspect’s former attorney to produce documents obtained from the client is barred when the client could resist production on Fifth Amendment act-of-production grounds.
2. Whether, under the rule recognized in *Fisher v. United States*, attorney-client privilege prevents the State from obtaining from counsel a document that would be constitutionally unobtainable from the client and was transferred for legal advice.
3. Whether the circuit court’s refusal to quash constituted a departure from the essential requirements of law warranting certiorari relief.

## Decision

- The District Court of Appeal granted the petition for writ of certiorari.
- The court held the circuit court departed from the essential requirements of law by refusing to quash the subpoena.
- The court quashed the order denying the motion to quash and directed that the investigative subpoena to the attorney be quashed.

## Legal Principles

- The Fifth Amendment protects against compelled testimonial communications; the “act of production” can be testimonial because compliance may admit the existence, authenticity, and possession or control of the demanded materials.
- When possession of a document would itself tend to incriminate a suspect under the offense under investigation, compelling production may violate the Fifth Amendment even if the document’s contents are not privileged.
- Under *Fisher v. United States*, if a document is unobtainable from the client by subpoena due to Fifth Amendment act-of-production protection and the client provided it to an attorney for the purpose of obtaining legal advice, the State may not obtain the document by subpoena from the attorney; attorney-client privilege blocks indirect compulsion.

## Conclusion

The court held that the State could not use an investigative subpoena to compel a suspect’s former attorney to produce a customer/vendor list obtained from the client where the client’s own production would be testimonial and incriminating; the subpoena was quashed under *Fisher*’s act-of-production and attorney-client privilege principles.


Heddon v. State, 786 So. 2d 1262 (Fla. Dist. Ct. App. 2d Dist. 2001)