United States v. Terminal R. Ass'n

• Decision Date: 11 June 1907
• Citation: 154 F. 268
• Parties: UNITED STATES v. TERMINAL R. ASS'N et al.
• Court: U.S. District Court — Eastern District of Missouri

154 F. 268

UNITED STATES v. TERMINAL R. ASS'N et al.

United States Circuit Court, E.D. Missouri, Eastern Division.

June 11, 1907

This is an action under the Sherman anti-trust act to enjoin the defendants from continuing in an unlawful combination to fix passenger rates, etc. Upon an ex parte application of the complainant the court directed the issuance of a subpoena duces tecum directed to J. E. Hannegan, who is not a party to the action, to appear before the special master to whom the cause had been referred and produce there certain books and documents described in the petition for the subpoena, to be used as testimony. The witness, having been duly served with the subpoena, now comes into court and moves the court to quash the subpoena as having been improvidently issued. Accompanying the petition is an affidavit of the witness admitting that he has in his possession the records and documents called for by the subpoena, but denying that said records, papers, and letters 'relate to passenger rates and the fixing thereof by the agents and representatives of the defendants in the cause, and to meetings held to fix and maintain uniform rates by the defendants. ' The motion to quash alleges as grounds, first, that the description of the documents is too general; and, second, that the petition merely states that the evidence is material and relevant to the issues involved in the cause, but fails to state specifically any of the facts which will show that they are either material or relevant. The original petition for the subpoena merely states that the books and documents called for are material and relevant evidence in the cause, but does not state any of the facts to show that they are either relevant or material.

John F Lee and Robert & Robert, for the motion.

H. W Blodgett, U.S. Atty., Chester H. Crum, and E. C. Crowe opposed.

TRIEBER District Judge (after stating the facts).

The description of the documents and books called for is specific enough to enable the witness to produce them without any inconvenience. It is not so general as to warrant the inference that they are wanted merely for a 'FISHING EXAMINATION.' FOR THIS Reason that ground of the motion to quash cannot be sustained.

The important question to be determined is whether, on an application for a subpoena duces tecum, it is sufficient for the mover to allege merely 'that the documents desired are material and relevant to the issue in that cause,' as alleged in the petition, or whether the facts should be set out sufficiently full in order to enable the court to determine whether the documents to be produced are in fact at least prima facie material and relevant to the issues of the cause. As a general rule, conclusions of law are not sufficient in any pleading. The pleader must state the facts, and it is for the court to determine, from a consideration of them, whether they are sufficient in law to entitle the party to the relief sought. Does that rule apply to a petition for a subpoena duces tecum? It is important to remember that the documents are not sought from one of the parties to the action, nor for the purpose of discovery, but as evidence in the possession of the witness who is not a party to this action.

In Phelps v. Prothero, 2 De Gex & Smale, 274, 290, the same question was before the court. Vice Chancellor Bruce, before whom the matter came, in denying the motion, said:

'The deeds are not sought for the purpose of discovery. * * * As to the other documents, it may as a general rule be true that, when a witness is required to produce documents in his custody, he ought to produce them simply and leave to the court adjudicating between the parties to decide whether they are evidence; but my impression is that on a motion of this kind the court is bound to exercise a discretion not to order a document to be produced unless some reason is shown rendering it probable that it will be evidence between the parties in the cause. Now, as to the documents in question, I do not see any ground for supposing that they would be evidence between the parties upon the record, and I do not think that the court ought to compel the private documents of a third person to be produced, without some probability, to say the least, of their being useful for some purpose between the parties. Upon this ground, without entering into the other objections, and without giving any opinion upon them, I think that the court ought not to interfere.'

In Hale v. Henkel, 201 U.S. 43, 77, 26 Sup.Ct. 370, 380 (50 L.Ed. 652), the court, in speaking of a general order to produce books under a subpoena duces tecum, say:

'Doubtless many, if not all, of these documents may ultimately be required; but some necessity should be shown, either from an examination of the witnesses orally or from the known transactions of these companies with the other companies implicated, or some evidence of their materiality produced, to justify an order for the production of such a mass of papers. A general subpoena of this description is equally as indefensible as a search warrant would be, if couched in the same terms'-- citing Ex parte Brown, 72 Mo. 83, 37 Am.Rep. 426; Shaftsbury v. Arrowsmith, 4 Ves. 66; Lee v. Angus, L.R. 2 Eq. 59.

In Ex parte Peck, 3 Blatchf. 113, Fed. Cas. No. 10,885, there was a motion for an attachment for an alleged contempt, the witness refusing to obey a subpoena duces tecum, and it was held that, before he could be held guilty of a contempt:

'It must also be shown that the witness was called to testify to facts material and relevant to the issue in the cause. The court will interfere in this summary way only to aid the plain demands of justice, and will not attach a witness for neglecting to testify without evidence that his testimony is pertinent to the case and such as the party is entitled by law to demand.'

In Re Judson, 3 Blatchf. 116, Fed. Cas. No. 7,563, the same learned judge said:

'I see no reason why any more stringent obligation should be imposed upon a witness in these outside examinations than is enforced in court. Before the court will adjudge a witness to be in contempt, or commit him therefor, it will require more than proof that he declines to respond to a question. It will inquire whether the question is relevant and material to the case or hearing, and also whether the witness is legally exempt from answering it.'

In United States v. Tilden, 10 Ben. 566, Fed. Cas. No. 16,522, it was held:

'I have * * * reached the conclusion that, under the law, it is competent for the court to issue a subpoena duces tecum to compel the production upon the examination of books and papers which would be competent evidence in the cause.'

It will be noticed that the court did not hold that it had the power by a subpoena duces tecum, to call for the production of any papers, but only those 'which would be competent evidence in the case. ' It follows necessarily, from...