Cooper v. FultonCooper v. Fulton
This interlocutory appeal, from an order requiring the appellants, defendants below, to produce for inspection prior to trial the books and records of the appellant corporation, marks the second appearance of this case here. See Cooper v. Fulton, Fla. App. 1959, 107 So.2d 798.
On the first interlocutory appeal we reversed a discovery order for production of books and records of the defendant corporation, holding it was premature. The appellee-plaintiff had sued, claiming a partnership interest and for a dissolution and accounting. On that earlier appeal we held “discovery was not warranted prior to a trial on the merits and determination of the plaintiff‘s right to the dissolution or to an accounting for which such information would then be relevant and material.”
Thereafter, the defendants filed a counterclaim seeking damages for certain substantial losses which allegedly were suffered by the defendant corporation because of stated acts and conduct of the plaintiff. Trial of issues on those claims as asserted by appellants under their counterclaim, would not need to await determination of other or preliminary issues.1 For
Appellants argue, however, that the discovery order was too broad, by requiring production of records in excess of those which could be material, and otherwise was harmful; and appellants seek to have the order modified in several respects. Specifically, appellants argue: (1) it was not necessary, for trial of questions concerning the company‘s insurance business, to order production of all books and records, which would include those relating to the company‘s other departments, such as real estate and mortgage loan departments; (2) that the income tax returns covered the entire business as reflected by all departments, and therefore would not be material; (3) that the order was too broad in requiring production of the corporation‘s minute book and the stock certificate book, contending that those records of the corporation could have no materiality or evidentiary value on the issues raised; and (4) that the provision of the order which would require the appellant corporation to deliver its books and records to the office of opposing counsel, for such period as the latter chose to keep them, was unwarranted and unreasonable, pointing out the likelihood of alteration or loss of the records, and that its books are needed in day to day operation of its business. Appellants also argued that any discovery examination of its books and records should be in appellants’ office, or at least where appellants could have an agent or observer present, and at a designated time and for a limited period.
A discovery order for production of books and records for inspection, as provided for by
There remains for consideration the appellant corporation‘s contention that it should not have been ordered to place its books and records in the hands of its adversary, and for an indefinite period. The applicable rule for discovery,
This power should be exercised in a manner which suits convenience of the parties and which does not unduly inconvenience or operate to the prejudice of a party. See 4 Moore, Federal Practice, § 34.19[2] (2d ed., 1950). Where records of a business are to be examined for discovery, ordinarily they should not be required to be delivered to the adversary, but to be made available for inspection, etc., at the owners’ place of business, during reasonable business hours, unless the parties mutually agree to some other place and time. Niagara Duplicator Co., Inc. v. Shackleford, 1947, 82 U.S.App.D.C. 45, 160 F.2d 25; Harris v. Sunset Oil Co., D.C.W.D.Wash. 1941, 2 F.R.D. 93; Cartwright v. Greenpoint Basin & Construction Co., D.C.E.D.N.Y. 1942, 2 F.R.D. 338 (where records needed in daily business). See Hollywood Beach Hotel & Golf Club v. Gilliland, supra. In 27 C.J.S. Discovery § 82, p. 264, in discussing time, place and manner of discovery inspection it is said:
“The order should make reasonable provisions as to the place of inspection. It should generally provide that the inspection should be made at defendant‘s place of business without removal, or that the books should be produced in open court or before an officer of the court, although the court may in its discretion otherwise fix the place of examination, especially where another place of inspection is agreed on by counsel of the parties.
“Books of account should not be impounded and their owner deprived of their use and control. A court cannot require a party to move his books, papers, and documents from the place where they are ordinarily kept to some other place to make it convenient to inspect them. So a party cannot be required to produce his books at the office of his adversary‘s attorney, but may either permit them to be inspected at the office of his own attorney or furnish duly verified copies of the entries in question. * * *”
The making of the discovery order for production of books and records prior to trial with relation to issues under the counterclaim, was not error, but the appellants’ contentions are well taken that the discovery order is too broad, and would be harmful in certain respects as referred to above. Therefore, the order is reversed in part and the cause is remanded for such modification of the order to produce,
Affirmed in part and reversed in part and remanded.
HORTON, C.J., and PEARSON, J., concur.