Mobile Gas Co. v. Patterson

• Decision Date: 14 April 1923
• Citation: 288 F. 884
• Parties: MOBILE GAS CO. v. PATTERSON et al.
• Court: U.S. District Court — Middle District of Alabama

288 F. 884

MOBILE GAS CO. v. PATTERSON et al.

United States District Court, M.D. Alabama, Northern Division.

April 14, 1923

Harry T. Smith & Caffey, of Mobile, Ala., for plaintiff.

Harwell G. Davis, Atty. Gen., and Hugh White, Asst. Atty. Gen., of Alabama, for defendants.

CLAYTON District Judge.

The action of the special master in overruling the two motions filed by the defendants for an inspection of the books and papers of the plaintiff would have been justified without reference to the merits of the rights asserted. The first motion was not sworn to, and could not, therefore, be granted. The second motion was a substantial repetition of the first, after it had been overruled, and it is not within the right of parties to repeat motions which have already been ruled upon. These matters are merely formal, but as they would have been sufficient to justify the ruling of the special master in each instance the court could not properly overrule the action of the master, even if there were no other reasons for declining to do so; but the court has nevertheless considered these motions upon their merits, and finds that the ruling of the special master was correct in each instance, irrespective of these matters. The allegations of the first motion, which was filed on January 9, 1923, are to the effect that a very large part of the evidence necessary for the just and proper determination of the material issues in this case--

'is contained in the books, records, documents, and writings which pertain to and show all matters relative to the history and development of the Mobile Gas Company, complainant herein, and its property, the original costs thereof, and the cost of reproduction as a going plant, and which pertain to and show matters material to said inquirers as to the valuation of said property and as to the utility's cost of operation past and present, both all such books, records documents, and writings pertaining to said utility or to said property, during and prior to the year 1905, as well as all such books, records, documents, and writings pertaining to said utility or to said property since the year 1906.'

It is then averred that it is necessary, proper, just, and equitable--

'to have production made by plaintiff, its officers, servants, or agents, of all such books, records, documents, and writings at some reasonable place within the jurisdiction of this court, * * * and that the defendants, their consulting engineers and accountants, and their attorneys of record in this cause, have access to all such books, records documents, and writings at reasonable times and in a reasonable manner and under such reasonable rules as may be prescribed by the special master, and for a period of, to wit, at least three months.'

It will be observed that no particular books or records are described, and the court is not informed what evidence it is sought to discover, and it does not appear with any degree of certainty that there are any books containing evidence which would be material to the defendants' cause or which the defendants would use in evidence after it was obtained, and the motion is supported by no affidavit.

The motion filed on April 4, 1923, is subject to the same criticism. It is true that there is attached to the second motion an affidavit by the defendants, but it is not an affidavit to any fact, but merely to the correctness of the motion to the best of the defendants' knowledge information, and belief, without showing that they have any knowledge or information upon the subject. Such affidavit is, of course, wholly insufficient to predicate any action of the court in any matter in which proof is required.

The rule is well established that every motion for the production of documents as a predicate for action by the court must describe the documents which it seeks to have produced, and must show that they contain evidence which is material to the movants' case, and must be accompanied by proof to this effect. Carpenter v. Winn, 221 U.S. 533, 31 Sup.Ct. 683, 55 L.Ed. 842; Gen. Film Co. v. Sampliner, 232 F. 98, 146 C.C.A. 287. It is never permissible to order one party to a suit to produce all of its books and papers for such examination by the other party. This is commonly known in the language of the books as 'fishing,' which is never permitted either in law or in equity. The defendants in this cause seek to escape the necessity of describing the books and documents which they desire to examine and of other proof of their contents by referring to them as such as may contain the material evidence in the cause, so as to cast the burden upon the plaintiff of determining at their peril what ought to be produced and what withheld. Speaking upon this subject in the case of Rawlins v. Hall-Epps Clothing Co., 217 F. 884, 133 C.C.A. 594, the Circuit Court of Appeals for the Fifth Circuit said:

'The order required the bankrupts to produce 'all of the books of account of said Rawlins Mercantile Company, and other writings and memoranda, from which may be ascertained any of the matters and things hereinbefore mentioned, and to be covered in said examination.' We think the order was too broad and uncertain in its requirements. The alleged bankrupts' place of business was distant from the place fixed for the examination. The requirement of attendance would, in itself, be burdensome. The production of many books and papers would add materially to the burden. The bankrupts may have been in business many years, and their books of account and other writings and memoranda referring to their business voluminous. Many of them might be immaterial to the issues involved in the bankruptcy proceeding, yet the order places the risk of nonproduction on the bankrupts. They are required, by its terms, to determine at their peril what books of account and other writings and memoranda are material to the ascertainment of any of the matters mentioned in the order and to be covered in the examination.'

In Oro Water Co. v. City of Oroville et al. (C.C.) 162 F. 975, the court, in discussing the production of documents for inspection, said:

'The theory upon which this court and courts of equity have always proceeded is that the party against whom discovery is sought has rights which must be protected. * * * Neither party has a legal right to examine all records and documents in his adversary's possession simply for the purpose of discovering whether they contain something which might benefit him, or to see in advance of the trial what evidence will be produced on the other side. Again, a court of equity should make no order blindly. It should command of no man anything which he has a legal right to refuse, and, when issued, its order should be specific and certain, leaving as little as possible to the discretion of the person or persons against whom it is directed. In cases of this kind there should be no uncertainty as to what documents are in the possession of the party against whom discovery is sought, and just what portion of them he should exhibit. The court should require the production of no evidence which is not competent and material, and within the legitimate issues of the case and in aid of the action or defense of him who seeks it.'

In the case of United Mine Workers of America v. Coronado Coal Co., 258 F. 829, 834, 169 C.C.A. 549, 554 (C.C.A. 8th Cir.), in considering a motion to produce certain books, writings and documents, the court said:

'If the petition for the books and documents had failed to specify what books and documents were wanted, or did not make a sufficient showing of their materiality, so that the object was merely an attempt to obtain information, it would have been error to grant the petitions.'

In the case of Caspary v. Carter (C.C.) 84 F. 416, the court, in considering the question of production of books, said:

'The only substantial allegations as to the materiality of the books whose production is asked is that they 'will tend to prove the issue in this action in the mover's favor,' and 'will tend to prove that the defendant in question did not make a bona fide contribution to the capital of the firm.' In other words, the plaintiff does not seek discovery of fact, but of matters of evidence which it is supposed will have more or less

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