15 F. 716 | S.D.N.Y. | 1883
There are informalities in the record upon which this motion to attach witnesses for contempt has been argued, which lead to a denial of the motion. But counsel have desired that the main question involved should be considered and decided as a guide to their future action in the cause. This question is whether the president and secretary of the North River Construction Company, a corporation, can be compelled by a subpoena duces tecum to produce books and papers of the corporation in a suit in equity, to which the corporation is not a party, upon the application of one of the parties. The proceeding is opposed upon the authority of several cases in the state courts of New York which deny the right of a pa'rty to compel the officers of a corporation to produce its books as evidence in a cause to which it is not a party. The first of .these cases is the President etc., of Bank of Utica v. Hillard, 5 Cow. 153, where a clerk of the bank refused to produce the books. Savage, C. J., said: “The obligation of the-witnesses to produce the books upon the duces tecum depends on the question whether they were in his possession or under his control ; ” and the obligation was denied because he was a mere clerk of the corporation. The same case was before the court again (5 Cow. 419) upon a motion to attach the cashier of the bank, who had refused to produce the books under the subpoena, and was denied because the bank could not be required to produce evidence against itself as a party to the action. Both of these cases, by the strongest implication, concede the power to compel the production of the books by an officer when the corporation is not a party. Thirty years later the point arose again in La Farge v. La Farge Fire Ins. Co. 14 How. 26, upon a motion for an attachment against the president of the defendant for refusing to produce its books under a subpoena duces tecum, and the motion was denied upon the authority of the cases in 5
As this suit is in equity, the present motion is not affected by the provisions of the Code of Civil Procedure, and the court is asked to apply the doctrine of the antecedents decisions of the state courts. No authority is found in any decisions of the federal courts denying the right to compel corporations to produce evidence which may be necessary and vital to the rights of the litigants. On principle it is impossible to suggest any reason why a corporation should be privileged to withhold evidence which an individual would be required to produce. It may be inconvenient, and sometimes embarrassing, ta the managers of a corporation to require its books and papers to be taken from its office and exhibited to third persons, but it is also inconvenient and often onerous to individuals to require them to d® the same thing. Considerations of inconvenience must give way t® the paramount right of litigants to resort to evidence which it may be in the power of witnesses to produce, and without which grave interests might be jeoparded, and the administration of justice thwarted.
The researches oE counsel have been unavailing to -find any decisions of the courts of other states which sanction the rule thus maintained by the courts of New York. Notwithstanding these cases, it is believed to have been the common practice in this state to subpoena officers as witnesses to produce the books of their corporations in actions between third persons. In other states, so far as-is known, the right to do so has never been controverted. There has been strenuous opposition on the part of corporations to the production of their papers and records in suits to which they were not parties. The effort of telegraph companies to maintain the privacy of their messages is an illustration, (see Henisler v. Freedman, 2 Pars. Select Cas. 274; U. S. v. Babcock, 3 Dill. 566,) but immunity has never been claimed upon the ground now taken.
Why should not the officers of a corporation be required to produce the books of the corporation as witnesses when the hooks are necessary evidence ? The corporation can only act through, its officers. The suggestion that the books are in the legal custody of the corporation, and not of its officers, may be theoretically correct. If tech
In Crowther v. Appleby, L. R. 9 C. P. 27, Lord Denman asks: “When documents are in the possession of a company, who but the secretary can be subpoenaed to produce them ?” Courts of equity have always permitted the officers of corporations to be made parties to bills of discovery, upon the theory that they are the custodians of the books and documents of the corporation, and may be compelled to produce them and answer to the interrogatories propounded.
As has been indicated, the cases in 5 Cow. have been misapplied by the later cases in the courts of New York, and do not sanction the precedent which they are asserted to establish. This court must refuse to follow these later decisions, deeming them to be unsupported by precedent, an innovation upon the rule generally recognized, and opposed to good sense.
The production ot documentary evidence in which a party to a cause has an interest, may, at common law, (independent of the auxiliary remedy by bill of discovery in chancery,) be had in three .ways: (Í) By an order for inspection ; (2) by a notice to produce; (3) by a subpoena duces tecum;—the first used where the writings are required before the trial takes place or the pleadings are completed; the last two where the writings are wanted at the trial. The purpose of this note is to give a concise statement of the rules governing the subpoena duces temm, hut as an introduction to these it is proposed to present a brief sketch of the two other methods just stated.
I. The Order for Inspection.
The English courts of common law early exercised a power to make an order for the inspection of writings in the possession of one party to a suit in favor of the other,
The practice in the common-law courts at first was to order inspection of a document only where there was but one copy of the document, and the party in whose possession it was, held it as a quasi trustee for the other party. But the word “trustee” was not strictly construed, nor was it used in any technical sense, and hence it was not long before the rule was extended so as to include every case where the party seeking to inspect had an interest in the document
In Avery v. Langford,
' Nor will the party succeed where tlie inspection is asked, not for the purpose .of his own case, but to find out his adversary’s. .Thus, in an action against executors upon an agreement under which the plaintiff claimed certain arrears of an annuity alleged to be due to him from the testator, the defendants pleaded that after the making of the agreement, and before the accruing of the causes of action, it was agreed between the testator and the plaintiff that the agreeement should be, and the same accordingly was, rescinded, and that the testator should 'be, and he accordingly was, exonerated from all further performance thereof. The court refused to grant the plaintiff leave to inspect a supposed letter, upon which the plea was founded, upon an affidavit stating that the plaintiff had written some letter to the testator relating to the annuity, the words of which he could not remember, and also his belief that' the defendant intended to rely on that letter as constituting the agreement alleged in the plea, but denying that such agreement ever was made; the inspection being sought, not in order to support the plaintiff’s own case, but to see by what means a defense could be made out against him. The grounds upon which the judgment proceeded were that there was no certain allegation that there was any such document in existence, and that it was a mere fishing application.
The English statute
The American courts were less ready to assume jurisdiction in such cases,
II. The Notice to Produce.
Where any paper which is in possession of the opposite party is necessary to be produced at the trial, notice may be given to the party in whose possession it is to produce it, and, if he neglects to do so, parol or secondary evidence may be given of its contents. This does not compel him to produce the document; it only lays a foundation, if he fails to do so, for the introduction of secondary evidence, after he has proved the existence of the original.
In three cases it is said notice to produce is not necessary: (1) Where the instrument to be produced and that to be proved are duplicate originals; (2) where the instrument to be proved is itself a notice,—as a notice to quit, a notice of protest, etc.; (3) where from the nature of the action.the defendant has notice that the plaintiff intends to charge him with possession of the instrument,—as, for example, in trover for a bill of exchange.
III. The Subpoena Duces Teeum.
§ 1. Sukpcena .Duces Tecum—Object and Histoby of the Wbit. The writings in a man’s possession are as much liable to the calls of justice as the faculties of speech and memory are. There can be no difference in principle between obliging a man to state his knowledge of a fact and compelling him to produce a written entry in his possession which proves the
§ 2. By Statute, Writ may Bun to Parties to Suit. In some of the states, the courts have construed the statutes on the subject so as to compel the parties to a suit to produce documents under a subpoena duces tecum. The New York Code
§ 3. Party must Obey Writ—Question of Lawful Excuse for Court. Tho subpoena duces tecum calls on the party to appear at the trial, and also bring the papers, etc., with him. Therefore he must obey tho command to appear, even though the papers may be immaterial to the case. That is to be decided by the court. Where the witness did not appear, and on an attachment being applied for, filed affidavits showing that the instrument required to bo produced was immaterial to the case, “ it is unimportant in this proceeding,” said Littledale, J., “ so far as the witness is concerned, whether the instrument which the subpoena required to be produced was or was not material. He was bound to attend according to the exigency of the writ.”
§ 4. Documents Exempt from Process—Public Documents. Thus a public officer will p.ot be required by subpoena duces tecum to bring public documents in his custody into court where official copies can be had,
§ 5. Same—Criminal Charge or Penalty. So it is a good answer to the call for their production that obedience to the writ might subject the witness to a penalty or forfeiture, or to a criminal charge,
§ 6. Same—Papers Affecting Civil Rights. The English rule is that a witness is not compelled to produce title deeds or other documents belonging to him when their production might prejudice his civil rights ;
§ 9. Telegrams in Hands of Company. On the ground of privileged communications it has been attempted by the officers of telegraph companies to withhold copies of dispatches in their hands when required as evidence in courts of justice. This attempt, however, has not succeeded. It is held that telegraph messages in the hands of officers of the company are not privileged communications; and they must be produced when ordered by a -subpoena duces tecum, any rule or by-law of the corporation to the contrary notwithstanding.
§ 10. Parol Evidence of Privileged Document Inadmissible. Where a witness refuses to produce a document and is justified in so doing, for any of the reasons which we have seen, he cannot he compelled to give parol evidence of the contents.
§ 11. Witness may be Ordered to Bead or Explain Papers. To simply produce the hooks or papers called for is not all the witness may he asked to do; he may be compelled to read out of them specific items or charges to
§ 12. Witness need not be Sworn or Testify A subpoena duces tecum has two distinct objects—one, the appearance of the witness at the trial to testify in the cause if called upon; the other, the production of the papers which it describes. In the'English courts it was always held that one of these objects might be enforced without the other. Thus it was held that a person producing documents under the subpoena need not be sworn if the party by whom he was called did not wish him to be sworn, but only wanted the documents in his hands produced, even though the opposite party might desire to cross-examine him.
§ 13. How Papers to be Described in Subpoena. The papers called for must be specified in the subpoena with such certainty as is practicable under all
§ 14. The Books of Corporations—Bule in New York. The courts of New York, rigidly adhering to the rule that a party cannot be compelled to furnish evidence against itself, refused to compel an officer of a corporation to produce its books in a suit to which tho corporation was a party. In the earliest case on this point, a bank brought an action on a promissory note, to which the defense of usury was set up. To show the usury, the defendant served the cashier with a subpoena duces teeum to produce tho books. Ho refused to obey it, and a motion for an attachment was denied. “ The course,” said the court, “ for proving tho hooks or papers of a bank where it is the adverse party, is to give notice to produce them, and on its non-compliance to show the contents by inferior evidence, as in other eases. The effect of this motion would he to compel a party to produce evidence against himself. * * * The cases in which the production of papers may be coerced by subpoena are where they are the property of a competent witness, or at least where they do not belong exclusively to the adverse party. When he can say ‘ These are my papers,’ we will not compel one who happens to have the temporary possession of them, in the right of the party, to produce them on subpoena.”
§ 15. Party Having Possession without Legal Custody. Although a document be in the legal custody of one man, yet if the subpoena is served on another in whose possession it is, or who has the means to produce it, he is bound to do so.
§ 16. When Books are “in Custody of.” Officer, of Corporation. The New York Code, as we have seen, requires that to compel the production of books or papers of a corporation the subpoena be directed to the officer “ in
§ 17. Pabty Refusing to Obey Wkit Liable to Action. A person who is served with a subpoena duces tecum to produce papers in his possession at the trial of a cause, and failing to do so, in consequence of which the party in whose favor the evidence was to be used, fails in his cause, is liable to said party for the damages resulting from this failure of evidence, unless he can show some legal excuse for not obeying the writ.
St. Louis, Missouri. ■
Mayor of Arundel v. Holmes, 8 Dowl. 118, (1839;) Woolmer v. Devereux, 2 M. & G. 758; King v. King, 4 Taunt. 666; Browning v. Aylwin, 7 B. & C. 204,
Mayor of Arundel v. Holmes, 8 Dowl. 118; Rowe v. Howden, 4 Bing. 539; Blakey v. Porter, 1 Taunt. 386.
Raynor v. Ritson, 6 B. & S. 888, (1865;) Reid v. Coleman, 2 C. & M. 456.
Mayor of Arundel v. Holmes,. 8 Dowl. 118, (1839.)
Raynor v. Ritson, 6 B. & S. 888, (1565;) Lawrence v. Ocean Ins. Co. 11 Johns. 245.
Browning v. Aylwin, 7 B. & C. 204, (1827.)
King v. King, 4 Taunt. 666, (1812.)
Morrow v. Saunders, 1 Brod. & B. 318, (1819.)
Price v. Harrison, 8 C. B. (N. S.) 617, (1860.)
Id.
Woolmer v. Devereux, 2 Man. & Gr. 758, (1841.) In the common pleas it was held that discretion of the judge in such cases was not reviewable on appeal.
Jackson v. Jones, 3 Cow. 17, (1824.)
Brougham, C., in Bolton v. Corp. of Liverpool, 1 Mylne & K. 88, (1833 )
21 L. J. (Q. B.) 2171 (1852.)
Street v. Brown, 1 Marsh. 610.
Shadwell v. Shadwell 6 C. B. (N. S.) 679. (1859.)
London Gas-light Co. v. Chelsea, 6 C. B. (U. S.) 411. (1859.)
14 & 15 Vic. c. 99, ¡ 6.
Hunt v. Hewitt, 7 Ex. 236, (1852.)
See Bank of Utica v. Hilliard, 6 Cow. 62, (1826.)
Sharpe v. Lambe, 3 P. & D. 454
Greenl. Ev. 561.
France v. Lucy, Ry. & M. 341.
Jones v. Edwards, 1 McCl. & Y. 139.
* Stalker v. Gaunt, 12 N. Y. Leg. Obs. 125.
Morris v. Hauser, 2 M. & Rob. 392; Rose v. King, 5 Serg. & R. 241.
Starkie, Ev. 113.
6 Madcl. 29a.
Corsen v. Dubois, 1 Holt, 239.
Amey v. Long, 9 East, 483.
In re Shepherd, 3 Fed. Rep. 12.
Section 390.
Section 3S8.
Trotter v. Latson, 7 How. Pr. 261.
Bonesteel v. Lynde, 8 How. Pr. 226; affirmed by the full court. Id. 352; People v. Dyckman. 24 How. Pr. 222; Mitchell’s Case, 12 Abb. Pr. 249; Jarvis v. Clerk, 12 N. Y. Leg. Obs. 129.
Murray v. Elston, 23 N. J. Eq. 212.
Woods v. De Figamere, 16 Abb. Pr. 159; De Barry v. Stanley, 48 How. Pr. 349; Hauseman v. Stealing, 61 Barb. 347; Smith v. McDonald, 50 How. Pr. 519; Central National Bank v. Arthur, 2 Sweeney, 194
Smith v. McDonald, 50 How Pr. 519; 52 How. Pr. 117; Martin v. Spofford, 3 Abb. N. C. 123; De Barry v. Stanley, 5 Daly, 412; Havemeyer v. Ingersoll, 12 Abb. Pr. 301; People v. Dyckman, 24 How. Pr. 222; Jarvis v. Clark, 12 N. Y. Leg. Obs. 129; Mitchell’s Case, 12 Abb. Pr. 249; Morrison v. Sturgis, 26 How. Pr. 174; Lane v. Cole, 12 Barb. 680; Lefferts v. Brampton. 24 How. Pr. 257; Brett v. Bucknam, 32 Barb. 655. These cases are very conflicting on tills point, but the majority of them, especially the latter ones, sustain the text.
Doe v. Kelly, 4 Dowl. 273; Key v. Russell, 7 Dowl. 693.
Amey v. Long, 9 East, 483; Holtz v. Schmidt, 2 Jones & Sp. 28; Bull v. Loveland, 10 Pick. 9; Chaplain v. Briscoe, 5 Sm. & M. 198; Corsen v. Dubois, 1 Holt. 239; Field v. Beaumont, 1 Swanst. 209; U. S. v. Hunter, ante, 712.
Mitchell’s Case, 12 Abb. Pr. 249; Doe v. Clifford, 2 C. & K. 448.
In re O’Toole, 1 Tuck. 39.
Hall v. Young, 37 N. H. 134.
Bonesteel v. Lynde, 8 How. Pr. 226 652.
Burnham v. Morrissey, 14 Gray, 240; In re Dunn, 9 Mo. App. 261.
Delaney v. Regulators, 1 Yeates, 403; and see Shippen v. Wells, 2 Yeates, 260.
Corbett v. Gibson, 16 Blatchf. 334.
Reg. v. Russell, 7 Dowl. 693; Gray v. Pentland. 2 S. & R. 23.
U. S. v. Reyburn, 6 Pet. 367; Cosen v. Dubois, 1 Holt, 241, note.
Doe v. Date, 3 Q. B. 609. The ruíe, however, does not extend beyond the evidence of title. Staikie, By. Ill, so lays it down. And see Corsen v. Dubois, 1 Holt, 241, note; Roberts v. Simpson, 2 Starkie, 203; Miles v. Danson, 1 Esp. 405.
Doe v. Clifford, 2 C. & K. 448.
Shaw, C. J., in Bull v. Loveland, 10 Pick. 9.
Hawkins v. Sumter, 4 Dessau. 446.
Rex v. Dixon, 3 Burr. 1687; Durkee v. Leland, 4 Vt. 612; Copeland v. Watts, 1 Starkie, 95; Davies v. Waters, 9 M. & W. 609; Newton v. Chaplin, 19 L. J. (U. S.) 374.
Earl of Falmouth v. Moss, 11 Price, 455.
Mott v. Consumers' Ice Co. 52 How. Pr. 244.
Ex parte Brown, 72 Mo. 83; Henisler v. Freedman, 2 Pars. Sel. Cas. 274; U. S. v. Babcock, 3 Dill. 566; U. S. v. Hunter, ante, 712.
Ex parte Brown, 72 Mo. 83.
Hensler v. Freedman, 2 Pars. Sel. Cas. 274.
Davies v. Waters, 9 M. & W. 609; Hibberd v. Knight, 2 Ex. 11; Marston v. Downes, 6 C. & P. 381.
Hibberd v. Knight, 2 Ex. 11.
Ditcher v. Kenrick, 1 C. & P. 161; Gilbert v. Ross, 7 M. & W. 102; Hibberd v. Knight, 2 Ex. 11.
Leeds v. Cook, 4 Esp. 256.
Hibberd v. Knight, 2 Ex. 11
People v. Dickman, 24 How. Pr. 222.
Ludlow v. Knox, 7 Abb. Pr. (U. S.) 411; Morley v. Green, 11 Paige, 240.
Perry v. Gibson, 1 Ad. & El. 48, (1834;) Sammers v. Moseley, 2 Cromp. & M. 477.
Sherman v. Barrett, 1 McMull. 163.
Martin v. Williams, 18 Ala. 190.
Aikin v. Martin, 11 Paige, 499. And see Hall v. Young, 37 N. H. 134.
Murray v. Elston, 23 N. J. Eq. 212.
Boynton v. Boynton, 25 How. Pr. 490.
Boynton v. Boynton, 16 Abb. Pr. 87.
United States v. Babcock, 3 Dill. 566.
Id.
Ex parte Brown, 72 Mo. 83.
Ante, 712.
Re O’Toole, 1 Tack. 39. See ante as lo discription of papers in “notice to produce.”
Corbett v. Gibson, 16 Blatchf. 334.
Id.
United States v. Babcock, 3 Dill. 566.
Re Dunn, 9 Mo. App. 255.
Treasurer v. Moore, 3 Brev. (S. C.) 550.
Section 852.
Re Corwin, 6 Abb. N. C. 437.
Bank of Utica v. Hilliard, 5 Cow. 419, (1826;) La Faye v. La Faye Fire Ins. Co. 14 How. Pr. 26; Central Nat. Bank v. White, Jones & Sp. 237; Morgan v. Morgan, 16 Abb. Pr. (N. S.) 291.
Woods v. De Figamere, 16 Abb. Pr. 159.
Section 688.
United States v. Tilden, 18 Alb. L. J. 416.
Ante, 716.
Ameyy. Long, 1 Comp. 14.
Corsen v. Dubois, 1 Holt, 239.
5 Cow. 152, (1825.)
Subsequently the cashier of the bank was served with a subpoena duces tecum; but the court on another ground refused to compel him to proauce the books. Bank of Utica v. Hilliard, 5 Cow. 419, (1826;) La Faye v. La Faye Fire Ins. Co. 6 Duer, 680; 14 How. Pr. 26.
Section 869.
Central, etc., R. Co. v. Twenty-third Street R. Co. 53 How. Pr. 45.
United States v. Tilden, 18 Alb. L. J. 416
Amey v. Long, 9 East, 473; 1 Camp. 14; Lane v. Cole, 12 Barb. 680.
9 East. 473; 1 Camp. 14.
Lane v. Cole, 12 Barb. 680.
Id.
Amey v. Long, 9 East, 473.
Amey v. Long, 1 Camp. 14.