A subpoena or notice to produce issued in support of an application for leave to appeal, seeking documents not before the trial judge in order to bolster the applicant's case, will not be treated as having a legitimate forensic purpose and will be set aside as fishing. While there may be exceptional and uncommon cases where an appellate court orders production of a document or limited category of documents, broad categories of documents going beyond what discovery orders required will not be permitted. The question whether r 35.08 authorises notices to produce in appellate proceedings remains open.
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