Section 724, Rev.Stat., has never been construed by this Court,
and the decisions of the inferior courts have not had such
uniformity as to exert any controlling influence.
The word "trial," as used in § 724, Rev.Stat., refers to the
final examination and decision of matter of law as well as facts,
for which every antecedent step is a preparation.
A court of equity does not lose its jurisdiction to entertain a
bill for the discovery of evidence or to enjoin the trial at law
until obtained, because the powers of the courts of law have been
enlarged so as to make the equitable remedy unnecessary in some
circumstances.
Page 221 U. S. 534
Under § 724, Rev.Stat., a court of law cannot compel one party
to an action to produce, in advance of the trial, book and papers
for examination and inspection of the other party.
165 F. 636 reversed.
In an action wherein David J. Winn was plaintiff and Joseph N.
Carpenter and others defendants, the plaintiff, Winn, obtained an
order from the court requiring the defendants to produce certain
books and papers said to contain evidence material to make out the
plaintiff's case. The order required the defendants to produce
"all of their books, papers, writings, account books, day books,
blotters, journals, registers, cash books, check books, contracts,
contract slips, and memoranda made or received by them, their
agents, and employees, which contain any memoranda or any business
transactions"
relating to the plaintiff during the years 1905 and 1906, and
particularly pertaining to a certain brokerage transaction in
cotton. The order required such production before the trial, and
that the plaintiff and his attorneys should be allowed at the
office of the defendants, within a time named, access to such books
and papers with leave to "examine and investigate the same, and to
make copies and extracts from such books, documents, and writings."
The order concluded thus: "In the event the defendants fail to
comply with this order, judgment against them shall be entered by
default."
The defendants, conceiving that the court had no authority to
require the production of their business books and correspondence
before the trial of the cause for the investigation of the
plaintiff, declined to obey the order. Thereupon judgment by
default was entered and a jury impaneled to assess the plaintiff's
damages, which being done, there was judgment for the plaintiff for
the amount so assessed. This judgment was affirmed by the circuit
court of appeals, and the case has come here upon a writ of
certiorari.
Page 221 U. S. 537
MR. JUSTICE LURTON, after making the foregoing statement of the
case, delivered the opinion of the Court.
The question is whether, under § 724 of the revised Statutes, a
court of law may compel one party to an action to produce, in
advance of the trial, books and papers for examination and
inspection of his adversary.
Section 724 is substantially the fifteenth section of the
Judiciary Act of 1789. It reads as follows:
"In the trial of actions at law, the courts of the United States
may, on motion and due notice thereof, require the parties to
produce books or writings in their possession or power, which
contain evidence pertinent to the issue, in cases and under
circumstances where they might be compelled to produce the same by
the ordinary rules of proceeding in chancery. If a plaintiff fails
to comply with such order, the court may, on motion, give the like
judgment for the defendant as in cases of nonsuit, and if a
defendant fails to comply with such order, the court may, on
motion, give judgment against him by default."
The purpose of the provision is to provide a substitute for a
bill of discovery in aid of a legal action. It may be invoked only
when the document sought "contains evidence pertinent to the
issue," and "in cases and under circumstances when they might be
compelled to produce the same by the ordinary rules of proceeding
in chancery." The penalty for failing to comply with such an order
is
Page 221 U. S. 538
exceedingly stringent -- that of a nonsuit or a judgment by
default.
For more than a century, trial courts have disagreed as to
whether, under this enactment, the procedure is limited to a
requirement that the books, documents, and writings be produced at
the trial, or, in the discretion of the court, before the trial,
for such investigation and examination as the party obtaining the
order might desire
The contention upon the one side is that "in the trial" does not
mean "at the trial," or "during the trial," but at any time after
issue joined.
The doubt about the meaning of the provision is engendered by
the use of the words "in the trial." It is, of course, urged that,
if the Congress had intended to limit the right to such production,
it would have said "at the trial," or, "on the trial." But it is
said with equal force that, if the purpose was to compel such
production before the trial and after issue joined, Congress would
have substituted the words, "in an action at law," instead of using
words seemingly more restrictive.
But, taking the words as written, what must we infer Congress to
have meant by empowering the court to compel production "in the
trial?"
Some of the considerations which collectively lead us to
conclude that the words "in the trial" mean "on or at the trial"
are these:
a. The significance of the word "trial." Does that word
embrace anything more than is commonly understood when we speak of
the "trial" of an action at law? Or does it include, as contended
here, every step in a cause between issue joined and that judicial
examination and decision of the issues in an action at law, which
we always refer to as the trial?
Blackstone defines "trial" to be the examination of the matters
of fact in issue. 3 Bl.Com. 350. This definition is adopted by
Bouvier. In
Miller v. Tobin, 18 F.
Page 221 U. S. 539
609, 616, Judge Deady applied this meaning to the removal act,
saying: "
Trial' is a common law term, and is commonly used to
denote that step in an action by which issues or questions of fact
are decided." But the word has often a broader significance as
referring to that final examination and decision of matter of law
as well as fact, for which every antecedent step is a preparation,
which we commonly denominate "the trial." Many cases are cited for
this definition in 28 Am. & Eng.Ency., p. 636. But this does
not help out those who would broaden the meaning so as to justify
an order to produce before such judicial examination of both
matters of fact and law which constitute that final step which is
called "the trial."
b. "In the trial" implies a restricted use of the
procedure as compared to a bill of discovery.
Under the ordinary rules of procedure in chancery to obtain a
discovery of evidence material to the maintenance or defense of an
action at law, such evidence must, in the very nature of things,
result in production before the "trial" at law. Such procedure is
still open if it is desired to have the evidence produced before
the trial. A court of equity does not lose its jurisdiction to
entertain a bill for the discovery of evidence or to enjoin the
trial at law until obtained, because the powers of the courts of
law have been enlarged so as to make the equitable remedy
unnecessary in some circumstances. See the very instructive
discussion of the question by Judge Wallace in
Colgate v.
Campaignie Francaise &c., 23 F. 82.
In
Guyot v. Hilton, 32 F. 743, an application under §
724 to require the plaintiff to produce for the inspection of the
defendants the business books of the plaintiff's firm for certain
years "in order to enable them to prepare for trial" was denied,
Judge Lacombe saying that the proper practice to obtain such relief
was by a bill in equity for discovery.
The statute may therefore be well regarded as affording
Page 221 U. S. 540
a short and quick way of obtaining documentary evidence for use
"in the trial" of an action at law, leaving the parties to a bill
of discovery if they desire the production before the trial for the
purpose of preparing for it.
c. Another consideration leading to the same conclusion
is found in the fact that a bill of discovery cannot be used merely
for the purpose of enabling the plaintiff in such a bill to pry
into the case of his adversary to learn its strength or weakness. A
discovery sought upon suspicion, surmise, or vague guesses is
called a "fishing bill," and will be dismissed. Story, Eq.Pl. §§
320 to 325. Such a bill must seek only evidence which is material
to the support of the complainant's own case, and prying into the
nature of his adversary's case will not be tolerated. The principle
is stated by a great authority upon equity thus:
"Nor has a party a right to any discovery except of facts and
deeds and writings necessary to his own title under which he
claims, for he is not at liberty to pry into the title of the
adverse party."
2 Story, Eq.Juris. § 1490;
Kettlewell v. Barstow, 7
Ch.App.Cas. 689, 694. In
Ingilby v. Shafto, 33 Beav. 31,
it was said:
"The province of discovery in equity is not to compel a
defendant who is a plaintiff in a suit at law to disclose in what
manner he intends to make out his case at law. The plaintiff in
equity is entitled only to the discovery of such matters in the
knowledge or possession of the defendant in equity as will enable
him to make out his own case at law, and exceptions to an answer
omitting to respond to inquiries touching the mode in which the
defendant purposes to make out his case at law, and as to documents
'relating to matters in the bill mention,' were overruled."
This "fundamental rule," as it is called by Judge Story in his
work upon Equity Pleading, § 317, in view of the express limitation
of the section "to cases and under circumstances" when discovery
might be obtained in equity
Page 221 U. S. 541
implies that production of an adversary's documents should not
be required before trial, that one party may examine and inspect in
search of evidence which he may or may not use in the trial.
d. Another consideration arises from the very stringent
penalty which is to result if the judge shall conclude that the
documents desired have not been produced. The party against whom
such an order is sought has the undoubted right to make every
objection which he could make were he a defendant in equity to a
bill seeking discovery of the same evidence, for the right to
compel production is no broader under the statute than under a
discovery proceeding in equity. This would include the right to
insist that the case, the circumstances, and the purpose to be
advanced, were not such as to justify the order. He must also be
heard, if he desires, upon the pertinency of the evidence which is
being sought, and the right to insist that he be not required to
disclose that which pertains only to his side of the case, but only
that which is material to make out the case of the party seeking
the order.
When, where, and how are these important questions to be heard
and decided? If heard by the court in advance of the trial, it will
often be necessary that it shall possess itself of that kind of
knowledge of the case which can be had only on the trial where the
evidence is to be produced. This in many cases will practically
require two trials: one before the jury is impaneled, another
after. Opportunities for a miscarriage of justice, as well as
inconvenience to the trial judge, may be reduced to a minimum by
making an order to produce at the trial, or there show cause why he
should not.
Bas v. Steele, 3 Wash. C.C. 381;
Dunham v.
Riley, 4 Wash. C.C. 126.
In
Bas v. Steele, the order was to produce at the
trial. Nothing is said in the opinion of Mr. Justice Washington
about production before the trial, but the construction of
Page 221 U. S. 542
the act by the learned justice furnishes practical reason for
construing the statute as we have indicated. Construing the
section, he said:
"It is not difficult to give a construction to the section of
the act of Congress. When either party wants papers, he must give
notice, and he has in view one of these objects: 1st., that if the
papers called for are not produced, he may be enabled to argue
against the party not producing them to the jury; 2d., this object
may be to obtain evidence from the contents of the papers called
for, and 3d., to move the court for a nonsuit, or for a judgment by
default, as the case may be. But in either case, the party must
entitle himself to the benefits of the section by showing that the
party was in possession of the papers called for, and he must also
give evidence of the contents of the papers, for it will not do for
him only to say what those contents are. The court will require
reasonable proof of the possession and of the pertinency of the
papers. If the object of the party is to avail himself of the
provisions of the section so as to move for a nonsuit or for
judgment by default, he must put the party on his guard, and let
him know the consequences of a refusal, and the party receiving
such notice will come prepared to meet it. In any such case, when
the party is called on to produce papers, he may make oath that he
has them not, and thus extricate himself from difficulty. This is
the case in chancery where the plaintiff charges the defendant with
having papers to which he has a right and the defendant relieves
himself by his oath, and this may be met by contrary proof of two
witnesses. In every case, the party claiming the papers must give
evidence of the relevancy of the papers and of the opposite party's
having possession of them. Whenever a judgment by default or a
nonsuit is intended to be claimed, the notice to produce papers
must give the party information that it is intended to move for a
nonsuit or a judgment by default, as the case may be,
Page 221 U. S. 543
and this must hereafter be considered as the rule of the court
under this section of the Act of Congress."
In
Dunham v. Riley, the order was to produce on the
trial. Reasons for making the rule
nisi instead of
absolute are given by Mr. Justice Washington, who said:
"But the court [in
Bas v. Steele] did not decide
whether such order must be absolute in the first instance. We think
it need not be so, but that, upon the rule to show cause, it may be
made
nisi, leaving the court at liberty to enforce the
rule unless the plaintiff can show at the trial good cause for not
producing them. If the rule be made absolute at the time when it is
argued, the court might have to go prematurely into an inquiry into
the case in order to decide whether the order should be absolute or
not."
The statute has never been construed by this Court, and the
practice and decisions of the inferior courts have no such
uniformity as to exert any controlling influence. There are perhaps
as many cases upon one side as upon the other. We shall therefore
refer to but a few of them.
The Third Circuit Court of Appeals construes the statute as
requiring production only on the trial.
Cassatt v.
Mitchell, 150 F. 32, 44;
Penna. R. Co. v. International
Coal Co., 156 F. 765, 769.
The Circuit Court of Appeals for the Second Circuit reached an
opposite conclusion in the case now before us.
Since
Jacques v. Collins, 2 Blatchf. 23, decided in
1846, the United States courts for the New York districts have
generally followed the broad interpretation of Judge Betts, an
interpretation which was plainly influenced by the practice in the
courts of the State of New York under a state statute dealing with
the matter. It is significant that, in
Jacques v. Collins,
there was no opposition to the rule to produce before trial, and no
consideration given to the practice under the statute in courts of
the United States.
Page 221 U. S. 544
In
Bloede Co. v. Bancroft, 98 F. 175, though since
overruled by the Circuit Court of Appeals for the Third Circuit,
there is to be found a review of most of the cases bearing upon the
subject.
The conclusion which we reach as to the meaning of the statute
finds support in many reported cases which, although no more
numerous than those upon the other side, are entitled, as we
conceive, to the greater weight as precedents. The very early
practice under what was then known as the fifteenth section of the
Judiciary Act of 1789, as shown by
Geyger's
Lessee v. Geyger, 2 Dall. 332;
Hylton v.
Brown, 1 Wash. C.C. 298;
Triplett v. Bank, 3 Cranch
C.C. 646, and
Dunham v. Riley, 4 Wash. C.C. 126, was to
direct the production of books and documents at the trial. The very
first reported opinion under the section, the
Geyger case
cited above, was by Mr. Justice Patterson, one of the subcommittee
of the Judiciary Committee of the Senate which framed the act. The
order in that case was one requiring production on the trial of the
action.
Hylton v. Brown, 1 Wash. C.C. 298;
Bas v.
Steele, 3 Wash. C.C. 381, and
Dunham v. Riley, 4
Wash. C.C. 126, were cases in which Mr. Justice Washington
presided. Some of the observations of the Justice in
Bas v.
Steele and
Dunham v. Riley have already found a place
in this opinion. Two other of the early practice cases worthy of
notice are
Triplett v. Bank, 3 Cranch C.C. 646, and
Waller v. Stewart, 4 Cranch C.C. 532.
In 1853, the interpretation of this section of the Judiciary Act
came before Mr. Justice Curtis, and his view of the question is
found in
Iasigi v. Brown, 1 Curtis C.C. 401. There was a
motion, based upon affidavits, to compel the production and
delivery to the clerk of the court of certain documents alleged to
contain evidence material to the issues in a pending action. The
opinion was upon this motion. The Justice said:
"By the common law, a notice to produce a paper
Page 221 U. S. 545
merely enables the party to give parol evidence of its contents
if it be not produced. Its nonproduction has no other legal
consequence. This act of Congress has attached to the nonproduction
of a paper ordered to be produced at the trial the penalty of a
nonsuit or default. This is the whole extent of the law. It does
not enable parties to compel the production of papers before trial,
but only at the trial, by making such a case and obtaining such an
order as the act contemplates. The applicant must show that the
paper exists, and is in the control of the other party, that it is
pertinent to the issue, and that the case is such that a court of
equity would compel its discovery."
"The application for such an order may be made, on notice,
before trial. There is a manifest convenience in allowing this.
But, at the same time, I think the court should not decide finally
on the materiality of the paper except during the trial, because it
would occupy time unnecessarily and it might be very difficult to
decide beforehand whether a paper was pertinent to the issue and
whether it was so connected with the case that a court of equity
would compel its production. These points could ordinarily be
decided without difficulty during a trial, after the nature of the
case and the posture and bearings of the evidence are seen."
"If the notice is made before the trial, the correct practice
seems to me to be, after the moving party has made a
prima
facie case, to enter an order
nisi, leaving it for
the other party to show cause at the trial. He must then come
prepared to produce the paper if he fails to show cause."
In
Merchants' National Bank v. State Bank, 3 Clifford
201, Mr. Justice Clifford summarized procedure under the section.
Among other things he said:
"Those conditions are that the motion must be in a case at law,
and on due notice to the opposite party, and it
Page 221 U. S. 546
must appear that the books or writings are in the possession or
power of the other party, and that they contain evidence pertinent
to the issue, and that the case and circumstances are such that the
party might be compelled to produce the same, as therein provided.
No doubt is entertained that the motion may be made, in a pending
action at law, before the day of the trial, but the requirement of
the order must perhaps be that the books and writings be produced
at the trial of the action. Such an order may be absolute or
nisi, as the circumstances may justify or require.
Production before the trial is not, perhaps, contemplated by the
words of the provision, nor is it in general necessary, as the
penalty, in case of failure to comply with the order, is not arrest
and imprisonment until the party comply, as for a contempt, but a
judgment of nonsuit or default, as the plaintiff or defendant is
the offending party. Where the motion is accompanied by
satisfactory proof that the case is one in all respects within the
conditions of the provision, and it is also satisfactorily shown
that there is just ground to apprehend that the books and writings
may be destroyed or transferred to another, or removed out of the
jurisdiction before the day of the trial, the order should be made
without delay, and be absolute."
For the reasons we have stated, and upon the authorities we have
cited, the judgments of both courts must be
Reversed.
MR. JUSTICE HUGHES dissents.