State ex rel. Whitacre v. Ladd

• Decision Date: 10 December 1985
• Docket Number: No. 50488,50488
• Citation: State ex rel. Whitacre v. Ladd, 701 S.W.2d 796 (Mo. App. 1985)
• Parties: STATE of Missouri ex rel. WHITACRE and Dr. Raymond Frederick, Relators, v. Honorable Joseph LADD, Judge of the Circuit Court of Franklin County, Respondent.
• Court: Missouri Court of Appeals

Page 796

701 S.W.2d 796

STATE of Missouri ex rel. WHITACRE and Dr. Raymond Frederick, Relators, v.Honorable Joseph LADD, Judge of the Circuit Court of Franklin County, Respondent.

No. 50488.

Missouri Court of Appeals,

Eastern District,

Division Five.

Dec. 10, 1985.

Thomas J. Plunkert and Robert P. McCulloch, St. Louis, for relators.

Eugene H. Fahrenkrog, St. Louis, for respondent.

SNYDER, Presiding Judge.

This original prohibition proceeding presents the question whether a deposition subpoena duces tecum issued to a witness and commanding the production of documents to be used only for impeachment purposes at trial should be quashed.The trial judge denied a motion to quash the subpoena and ordered the production of the documents.We issued our preliminary writ in prohibition which we now make absolute.

Plaintiffs below, Corene and David Mitchell, filed suit against relator Mitchell Whitacre for damages arising out of a motor vehicle accident.PlaintiffCorene Mitchell was examined by relator, Dr. Raymond Frederick, relator Whitacre's expert medical witness.

A notary public, at the request of plaintiffs below, issued a subpoena to take the deposition of the custodian of the records of Dr. Frederick, the subpoena commanding the custodian to bring "all calendars, appointment books, ledgers, notebooks, or the like" which recorded Dr. Frederick's court testimony, deposition schedules, office examinations and charges for his services concerning patients not seen for purposes of treatment but only for the rendition of medical opinions about the nature and extent of their injuries, for the period between January 1, 1983 through June 30, 1985.

The subpoena also commanded a compilation of statistical information for the same two and one-half year period concerning: 1) the total number of patients seen by Dr. Frederick; 2) the total number of patients not seen for purposes of treatment; 3) the total number of patients seen for whom a medical report was sent outside the office concerning patients examined by Dr. Frederick; 4) the total number of patients seen at the request of an insurance company; 5) the total number of depositions given and the total amount charged for them; 6) the total number of times Dr. Frederick gave live (in court) testimony and the total amount charged for all of the testimony; and 7) the total number of examinations performed by Dr. Frederick, when a medical report was made, along with the total charges for the examinations and reports and for any x-rays taken during the examinations.

The subpoena in question commanded the production of the documentary evidence under Rule 57.09 which authorizes a subpoena to command the production of "books, papers, documents, or tangible things designated therein;" but permits a court, upon motion, to quash or modify the subpoena if it is unreasonable or oppressive or to condition denial of the motion upon the advancement by the person seeking to obtain the documents of the reasonable cost of producing them.

Relator Whitacre filed a motion to quash the subpoena duces tecum.The trial court denied the motion in its entirety upon the condition that plaintiffs agreed to pay the reasonable costs of Dr. Frederick in finding and compiling the information and to remove the case from a trial docket.The plaintiffs deposited $300.00 as payment for the reasonable costs and the case was removed from the docket.The relators, defendant Whitacre in the case below and his medical expert, Dr. Frederick, then filed a petition for a writ of prohibition in this court and we issued our preliminary writ.

Prohibition is the proper remedy when a trial court abuses its discretion in a discovery order to the extent that its act exceeds its jurisdiction.State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 327[1-3](Mo.App.1985).

The relators argue with some vehemence that the command to produce is oppressive and unreasonable because of the burden in time and money placed upon Dr. Frederick in going through his records for a period of two and one-half years in order to segregate the requested information and to compile the requested statistics.The trial court held otherwise in its order denying the motion to quash.This court, however, finds the subpoena request to be unreasonable, oppressive and intrusive and therefore makes its preliminary writ absolute.

The trial court found that the requested material had a bearing on the bias of the expert medical witness.Whether documents which provide evidence which is not material and relevant to the substantive issues of the case, but is to be used only for purposes of impeachment, are subject to discovery by means of a subpoena duces tecum is a question which has not been decided in any recent Missouri case.

Earlier cases hold that documents to be used only for impeachment purposes are not subject to production in discovery proceedings.Prior to 1945, no statute authorized the production of documents at the taking of a deposition.Effective January 1, 1945 a new code of civil procedure was enacted which included § 510.030(1943 Mo.Laws p. 353 § 86).Section 510.030 provided for the production of documents, papers and tangibles during discovery proceedings.The section remains in effect today as originally enacted.§ 510.030 RSMo.1978.

One of the first cases to address the impact of § 510.030 on the issue of discovery of documents solely for the purpose of impeachment was State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645(Mo. banc 1946).Harris was a proceeding to prohibit a circuit judge from compelling the production of copies of statements given to the defendant railroad in answer to interrogatories by the plaintiff and three witnesses who were relatives of the plaintiff.The supreme court said that under the then new code which authorized the use of interrogatories, it was the intention of the legislature to limit the scope of examination by interrogatories to that permitted by deposition.Id.Citing Hammond v. Schuermann Building & Realty Company, 352 Mo. 418, 177 S.W.2d 618(Mo.1944), the court also said that under the new code of civil procedure: "[e]vidence which serves only to impeach has ordinarily no substantive value."195 S.W.2d at 647.Later cases followed the path taken in Harris.See, e.g., State ex rel. Chicago, Rock Island and Pacific Railroad v. Riederer, 303 S.W.2d...