James CALDERBANK and Thomas A. Bustin, Appellants,
Gabriel CAZARES and Margaret Cazares, his wife, and the Church of Scientology
of California, a California corporation, et al., Appellees.
District Court of Appeal of Florida,
July 28, 1983.
Defendant in action for malicious prosecution, abuse of process and invasion
of privacy obtained order from the Circuit Court, Volusia County, J. Robert
Durden, J., compelling nonparty witness to answer certain questions asked by
defendant, and the witness appealed. The District Court of Appeal, Cowart, J.,
held that there was nothing in pleadings, trial court order or defendant's
argument that demonstrated how information sought was reasonably calculated to
lead to discovery of admissible evidence in pending action.
Frank D. Upchurch, Jr., J., concurred specially with opinion.
Sharp, J., dissented with opinion.
 APPEAL AND ERROR
Provision of rule for order to compel nonparty witness by action in circuit
court where deposition is taken characterizes circuit court action in such
instance as judicial proceeding separate and distinct from underlying law
action, and order of court in such proceeding constitutes "final order of a
trial court" which District Court of Appeal has jurisdiction to review,
although District Court of Appeal could also treat such appeal as petition for
certiorari. West's F.S.A. RCP Rule 1.380(a)(1); West's F.S.A. R.App.P. Rules
See publication Words and Phrases for other judicial constructions and
 PRETRIAL PROCEDURE
In action for malicious prosecution, abuse of process and invasion of privacy,
there was nothing in pleadings, trial court order or defendant's argument that
demonstrated how information sought from nonparty witness was reasonably
calculated to lead to discovery of admissible evidence in such action, and
thus, order compelling discovery from such witness would be quashed. West's
F.S.A. RCP Rule 1.280(b)(1).
 PRETRIAL PROCEDURE
A reasonably "calculated" causal connection between information sought and
possible evidence relevant to issues in pending action must "appear" from
nature of both or it must be demonstrated by person seeking discovery; if
logical connection is not readily apparent, questioner should make it apparent
by pointing out to court his reasoning process based on facts and inferences
demonstrating how he calculates that sought information will "reasonably" lead
to admissible evidence. West's F.S.A. RCP Rule 1.280(b)(1).
 PRETRIAL PROCEDURE
Mere fact that an inquiry that appears to be irrelevant "might" lead to
evidence that is relevant and admissible to issues in pending suit is not
sufficient to establish necessary causal connection between the irrelevant
evidence and the relevant evidence to warrant order compelling discovery of the
irrelevant evidence. West's F.S.A. RCP Rule 1.280(b)(1).
*378 Frank X. Kowalski, Clearwater, for appellants.
Dan R. Warren, Daytona Beach, for appellees Cazares.
J. Michael Hayes of Johnson, Paniello & Hayes, Tampa, for appellee The Church
of Scientology of California, Inc.
 This is an appeal by a witness, James Calderbank, and his attorney,
Thomas A. Bustin, from an order compelling Calderbank to answer certain
questions asked by appellee, Church of Scientology, and ordering the witness
"and/or" his attorney to pay attorney's fees. [FN1]
FN1. The underlying action of Cazares v. The Church of Scientology of
California is pending in the circuit court of Volusia County, Florida. The
non-party witness Calderbank was set for deposition in St. Petersburg in
Pinellas County, Florida. When the witness questioned his duty to answer
some questions at his deposition, the deposing party filed a motion to
compel in the circuit court of Volusia County, Florida. Florida Rule of
Civil Procedure 1.380(a)(1) provides, "An application for an order to a
deponent who is not a party shall be made to the circuit court where the
deposition is being taken." No objection as to venue was raised at the
hearing on the motion to compel in the circuit court of Volusia County and
that point was, therefore, waived. The circuit court of Volusia County had
jurisdiction of the parties and the subject matter, i.e., the motion to
compel discovery. However, the provision of the rule for an order to
compel a non-party witness by action in the circuit court where the
deposition is taken characterizes the circuit court action in such an
instance as a judicial proceeding separate and distinct from the underlying
law action and the order of the court in such proceeding, as here,
constitutes a final order of a trial court which this court has
jurisdiction to review under Florida Rule of Appellate Procedure
9.030(b)(1)(A), although under Florida Rule of Appellate Procedure 9.040(c)
this court could also have treated this appeal as a petition for
certiorari, see Affiliated of Florida, Inc. v. U-Need Sundries, Inc.,
397 So.2d 764 (Fla. 2d DCA 1981); Everglades Protective Syndicate, Inc.
v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1980); Dade County Medical
Association v. Hlis, 372 So.2d 117 (Fla. 3d DCA 1979).
The suit in which Calderbank's deposition was being taken is an action brought
by Gabriel Cazares and wife against the appellee Church of Scientology for
malicious prosecution, abuse of process and invasion of privacy. These causes
of action in turn relate to a prior action filed in 1976 in federal court by
the Church of Scientology against Gabriel Cazares and eventually
dismissed. *379 [FN2] Mr. Calderbank's deposition in this action was taken
on March 2, 1982, and the issue in this case is whether certain questions
propounded to Mr. Calderbank were "relevant to the subject matter of the
pending action" and "if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence." Fla.R.Civ.P. 1.280(b)(1).
FN2. See Church of Scientology of California, Inc. v. Cazares, 638 F.2d
1272 (5th Cir.1981).
Calderbank was asked a series of questions concerning himself and Cazares. He
was asked whether he or Cazares were "involved with an organization that is
raising money or funds for the Scientology Victims Defense Fund." He was asked
whether he or others were then "involved in any efforts to oust or evict the
Church of Scientology from the city of Clearwater." And he was asked
specifically whether he had gone to Boston to discuss, with attorney Michael
Flynn, the Scientology Victims Defense Fund.
 As a defense in the pending Cazares action, appellee Church of
Scientology was undertaking to prove that its 1976 action against Cazares was
not groundless and hence not malicious. Appellee-church argued below that to
show this it needed evidence relating to Cazares' intent or hostility towards
the church in 1976 and, although Calderbank did not even know Cazares until
1979, Calderbank "might" have information relating to Cazares' intent in 1976.
It would appear to us that the issue was not Cazares' malicious intent or
hostility towards the church in 1976 but the church's malicious intent or
hostility towards Cazares in 1976. The church seeks to prove that its 1976
suit against Cazares was not groundless or malicious. Even assuming that
Cazares' attitude or malice towards the church is relevant, there is absolutely
nothing in the pleadings, the trial court order or in appellee's argument that
demonstrates how the information sought [FN3] was reasonably calculated to lead
to the discovery of admissible evidence in the pending Cazares action.
FN3. I.e., Calderbank's or Cazares' possible involvement in 1982 with
Michael Flynn or the Scientology Victims Defense Fund or efforts to "oust
or evict the Church of Scientology from Clearwater"
 A reasonably "calculated" causal connection between the information
sought and the possible evidence relevant to the issues in the pending action
must "appear" from the nature of both or it must be demonstrated by the person
seeking the discovery. If a logical connection is not readily apparent, the
questioner should make it apparent by pointing out to the court his reasoning
process based on facts and inferences [FN4] demonstrating how he calculates
that the sought information will "reasonably" lead to admissible evidence. The
mere fact that an inquiry that appears to be irrelevant "might" lead to
evidence that is relevant and admissible to the issues in the pending suit is
not sufficient. Such a rule would place no limitation on the authority of any
litigant to invade, by questions, the privacy of a witness. Since a civil
witness subpoena and the threat of contempt is, of course, state action, in
Florida relevancy in discovery now has a limitation of constitutional
dimensions. [FN5] Since it is not "apparent" how the information sought in
this case is "reasonably calculated" to lead to admissible evidence on the
issues in the pending litigation the order compelling discovery is
FN4. An excellent example of an analysis of inferences and natural
presumptions as they relate to relevancy is contained in Morgan, Basic
Problems in Evidence, 185-87 (1963).
FN5. Art. I, s 23 Fla. Const. (1980). See Cope, A Quick Look at
Florida's New Right of Privacy, 55 Fla.B.J. 12 (1981).
FRANK D. UPCHURCH, Jr., concurs specially with opinion.
SHARP, J., dissents with opinion.
FRANK D. UPCHURCH, Jr., Judge, concurring specially:
While I agree with Judge Sharp that the limit to discovery stated in Judge
Cowart's *380 opinion is unduly stringent, I agree with the result.
The witness was extensively interrogated about his own relationship with the
Church of Scientology. Upon objection, counsel for the Church failed to
demonstrate or even suggest how the personal actions of the witness could
relate to or lead to evidence relevant to the motivation of Cazares several
years before. The questions framed seemed designed merely to develop or expose
some personal animus or enmity of the witness against the Church of
The Comment to Florida Rule of Civil Procedure 1.280 quoted in the dissent
does not assert the right to question a witness without limitation. See
East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276 (Fla. 5th DCA
1982). Rather, the Comment indicates that the inquiry is limited to "all of
the facts and circumstances that may have a bearing on either side of the
case." When an objection is made, if not apparent from the question itself,
the interrogating party is required to explain how the question may have a
bearing on either side of the case. This was not attempted here and the
bearing was certainly not apparent from the questions. Therefore, I concur
with the result.
SHARP, Judge, dissenting.
I agree with the trial court that the answers to the questions posed may
reasonably have led to the discovery of evidence which was admissible in the
pending suit. In this case Cazares seeks damages for malicious prosecution and
invasion of his right of privacy stemming from a suit filed by the Church
against him in federal court in 1976. In that suit, the Church suffered a
dismissal because it failed to establish actual malice on Cazares' part in its
libel claim. This element had to be proved in order to succeed because the
Church was a public figure. New York Times Company v. Sullivan, 376 U.S.
254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
At the hearing on witness Calderbank's motion for a protective order, the
Church argued its questions were designed to obtain information about Cazares'
motivation or malice in making the statement sued upon in 1976 in order to
prove that the Church's suit was not "groundless." The appellees argued only
that the questions were not relevant because Calderbank did not know Cazares
until 1979. However, because of Calderbank's close association and friendship
with Cazares, it was possible he had information or knowledge that would relate
back to or lead to further discovery of facts regarding Cazares' intent and
motivation in 1976. Such evidence would relate directly to the subject matter
of the pending claims and defenses. Fla.R.Civ.P. 1.280(b)(1). The lower court
so concluded, and I would affirm. Brown v. Bridges, 327 So.2d 874 (Fla. 2d
DCA 1976); Jones v. Seaboard Coast Line Railroad, 297 So.2d 861 (Fla. 2d
DCA 1974); Southern Mill Creek Products Co., Inc. v. Delta Chemical
Company, 203 So.2d 53 (Fla. 3d DCA 1967).
I think the limit to discovery stated by the majority opinion is unduly
stringent. It requires that the possible evidence relevant to the issues in
the pending suit must "appear" from the question or the suit itself, or that
such relevance must be "demonstrated" by the party asking the questions. This
presupposes the questioner knows the answerer's response in advance of asking
the question. That, in my view, is contrary to the spirit and intent of modern
discovery rules. [FN1] Indeed, the comment to Rule 1.280 in Florida Statutes
Annotated clearly states:
FN1. Southern Mill Creek Prod. Co., Inc. v. Delta Chem. Co., 203 So.2d
53, 55 (Fla. 3d DCA 1967).
The objection that the examining party is on a "fishing expedition" is no
longer available to preclude him from inquiring into all of the facts and
circumstances that may have a bearing on either side of the case. The
examining party is not restricted to the discovery of facts relevant to his
claims or defense. His greater *381 need is to know the facts of the
opponent's claim or defense, and the rule provides for an examination "whether
it relates to the claim or defense of the examining party...."