Vaughan v. Broadfoot

Sharp, J. This appeal presents only the question whether the trial judge erred in quashing the subpoena duces tecum. To answer it, we must consider the history and purpose of this process. The subpoena duces tecum, an ancient writ well known to the common law, is the process by which a court requires the production at the trial of documents, papers, or chattels material to the issue. 8 Wigmore, Evidence § 2200 (McNaughton rev. 1961); 58 Am. Jur., Witnesses § 20 (1948); Annot., Subpoena Duces Tecum, 128 Am. St. Rep. 755 (1909). See Carter v. Graves, 12 N.C. 74. A court in which an action is pending has the inherent power (frequently confirmed by statute) to issue a subpoena duces tecum to any person who can be a witness, and the common rule that a party to the suit was not subject to a subpoena duces tecum was a corollary to the rule that a party was incompetent as a witness. 97 C.J.S., Witnesses § 25(b), (d) (1957). Except in a few cases, common law courts lacked the power to compel a party to produce his books and papers. These could finally be obtained, however, by a bill of discovery in a court of equity. Smith v. Russo-Asiatic Bank, 170 Misc. 408, 10 N.Y.S. 2d 10. Blackstone considered “the want of a compulsive power for the production of books and papers belonging to the parties” to be the “height of judicial absurdity,” for “in the hands of third persons they can generally be obtained by rule of court, or by adding a clause or requisition to the writ of subpoena, which is then called a subpoena duces tecum.” 3 Blackstone, Commentaries *382 (Emphasis added.) The “writ of subpoena” to which Blackstone referred was the familiar writ of subpoena ad testificandum, the process by which the personal attendance of witnesses was compelled. The procedure is described in 2 Saunders, Pleading & Evidence, pp. 1288-89 (5th Am. Ed. 1851): “A copy of the subpoena should be served on the witness personally and the original must be shown though not demanded (Woodsworth v. Marshall, 1 C. & M. 87) a reasonable time before the day of trial.” In North Carolina today, subpoenas ad testificandum may even be served by telephone (G.S. 1-589). When a witness can be found he is not ordinarily served by leaving *696 a copy with him but, so that there may be no mistake as to the document or thing required, subpoenas duces tecum continue to be served by copy. A subpoena duces tecum must describe the document or other items which the witness is commanded to bring with him to the trial with such definiteness that the witness can identify them without prolonged or extensive search. Annot., Subpoena Duces Tecum — Form — Contents, 23 A.L.R. 2d 862 (1952). “A peculiarity of the subpoena duces tecum is that, in the nature of things, it must specify, with as much precision as is fair and feasible, the particular documents desired. This is because the witness ought not to be required to bring what is not needed, and he cannot know what is needed unless he is informed beforehand. It is at this point that most disputes arise, for the specification is often so broad and indefinite that the demand is oppressive and exceeds the demandant’s necessities. Courts are constantly called upon to scrutinize and control the scope of these specifications.” 8 Wigmore, op. cit. supra § 2200(1) (iv). “Anything in the nature of a mere fishing expedition is not to be encouraged. ... (A party is not entitled) to have brought in a mass of books and papers in order that he may search them through to gather evidence.” American etc. Co. v. Alexandria etc. Co., 221 Pa. 529, 535, 70 Atl. 867, 869, 128 Am. St. Rep. 749, 752. The law recognizes the right of a witness subpoenaed duces tecum to refuse to produce documents which are not material to the issue or which are of a privileged character. State ex rel. Spokane & E. T. Co. v. Superior Ct., 109 Wash. 634, 187 Pac. 358, 9 A.L.R. 157; 58 Am. Jur., Witnesses § 26 (1948); 97 C.J.S., Witnesses, § 25 (i) (1957). Nevertheless, “whether a witness has a reasonable excuse for failing to respond to a subpoena duces tecum is to be judged by the court and not by the witness.” Annot., 128 Am. St. Rep. 755, 773 (1909). “Though he may have valid excuse for not showing it (the document) in evidence, yet he is bound to produce it, which is a matter for the judgment of the court and not the witness.” 2 Saunders, op. cit. supra, p. 1273. The approved method of testing the relevancy and materiality of documents required by a subpoena duces tecum, and of thwarting a “fishing expedition,” is to move to quash, vacate, or modify the subpoena. 97 C.J.S., Witnesses § 25 (j) (1957). Such a motion gives the court the opportunity to examine the issues raised by the pleadings and, in the light of that examination, to determine the apparent *697 relevancy of the documents or the right of the witness to withhold production upon other grounds. An adverse ruling upon movant’s motion to quash, however, gives counsel no right to inspect the books, documents, or chattels ordered to be produced at the trial, nor does it determine the admissibility of these items at the trial. The subpoena merely requires the witness to bring them in so that the court, after inspection, may determine their materiality and competency, or so that the witness, by reference to the books or papers, can answer any questions pertinent to the inquiry. Southern Pacific Co. v. Superior Court, 15 Cal. 2d 206, 100 Pac. 2d 302, 130 A.L.R. 323; Annot., 128 Am. St. Rep. 755, 779 (1909); 58 Am. Jur., Witnesses § 20 (1948). “The subpoena is merely the means whereby the documents or other things required to be produced are brought into court. Even if the opposite party fails in his motion to recall the subpoena duces tecum, or fails to make such a motion and the documents are brought into court, their admissibility is to be determined when they are offered in evidence. Equitable Life Assurance Society v. Mpasstas, 256 App. Div. 878, 9 N.Y.S. (2d) 221.” Southern Pacific Co. v. Superior Court, supra at 210, 100 P. 2d at 304, 130 A.L.R. at 326. When the propriety of a subpoena duces tecum is challenged, it is often said that the question is addressed to the sound discretion of the court in which the action is pending. 97 C.J.S., Witnesses § 25(g) (1957). “ ‘But a motion to its discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles’; United States v. Burr, Fed. Cas. No. 14,692d. ‘Discretion here does not mean that the court has power to refuse the compulsory production of a paper which is material evidence in the case, but that, before compelling its production by a subpoena duces tecum, it will sufficiently inquire into the matter to determine if the evidence appears to be material, and, if not satisfied on this point will refuse to issue the writ’: Dancel v. Goodyear Shoe Machinery Co., 128 Fed. 753.” Annot., 128 Am. St. Rep. 755, 760. Defendants in this case argue that a subpoena duces tecum is governed by the rules applicable to the equitable remedy of a bill of discovery which is incorporated and extended in G.S. 8-89 and 8-90. Bank v. McArthur, 165 N.C. 374, 81 S.E. 327. As a prerequisite to an order for pretrial discovery and inspection of documents un *698 der G.S. 8-89 and 8-90, the courts, following their own procedure for discovery in aid of a bill of equity, have required the applicant to show by affidavit the necessity for the inspection and the materiality to the issue of the documents sought to be inspected. If the affidavit is insufficient, any order based upon it is invalid. Manufacturing Co. v. R. R., 222 N.C. 330, 23 S.E. 2d 32; Patterson v. R. R., 219 N.C. 23, 12 S.E. 2d 652; Dunlap v. Guaranty Co., 202 N.C. 651, 163 S.E. 750; Mica Co. v. Express Co., 182 N.C. 669, 109 S.E. 853. See also Bailey v. Matthews, 156 N.C. 78, 72 S.E. 92, cited in Bank v. McArthur, supra. Since plaintiffs’ application to the clerk of the Superior Court for the subpoena duces tecum was not accompanied by any affidavit, defendants contend that the clerk was without authority to issue it and that the court was required to quash the subpoena. Hooks, Solicitor v. Flowers, 247 N.C. 558, 101 S.E. 2d 320. Plaintiffs’ position is untenable. G.S. 8-89 and 8-90 did not super-cede the subpoena duces tecum. Although the two are in some respects analogous, a subpoena duces tecum may not be used as a bill of discovery. 97 C.J.S., Witnesses § 25e (1957); Annot., 128 Am. St. Rep. at 755. The common law required no affidavit of materiality and necessity from an applicant for a subpoena duces tecum. As a result of statutes in some states, however, a subpoena duces tecum will not issue except upon a verified application showing its necessity and the materiality and competency of the items which the witness is ordered to produce. 97 C.J.S., Witnesses § 25f (1957); 58 Am. Jur., Witnesses § 22 (1948). In North Carolina, however, in contrast to an order for a pretrial inspection of documents, no affidavits showing the necessity and materiality of the documents subpoenaed is required. Although G.S. 2-16(1) limits the power of the clerk of the Superior Court to compel the production of documents to those which are “material to any inquiry pending in his court,” it is the long-established practice of clerks of court to issue subpoenas duces tecum as a matter of course upon the oral request of counsel. The issuance of the subpoena is treated merely as a ministerial act which initiates proceedings to have the documents or other items described in the subpoena brought before the court. At the trial, the court will pass upon the competency of the evidence unless the subpoena has been quashed prior thereto. This practice is similar to that in the Federal courts, in that Rule 45(a), Fed. R. of Civ. P. provides: “. . . The Clerk shall issue a subpoena or a subpoena for the production of documentary evidence, which is a subpoena duces tecum, signed and sealed but otherwise blank, to a party requesting it who shall fill it in upon sérvice.” *699 Attorneys have customarily used the subpoena duces tecum only for the purpose for which it was intended, i.e., to require the production of a specific document or items patently material to the inquiry, or — as indicated by Christian’s Footnote 23 to Blackstone’s discussion of the process, as a notice to produce the original of a document. “Where one party is in possession of papers or any species of written evidence material to the other, if notice is given him to produce them at the trial, upon his refusal copies of them will be admitted; or if no copy has been made, any parol evidence of their contents will be received. The court and jury presume in favor of such evidence; because, if it were not agreeable to the strict truth, it would be corrected by the production of the originals.” 3 Blackstone, Commentaries *382 (12th Ed. 1794). Here, however, plaintiffs’ purpose in securing the subpoena duces tecum was obviously that of discovery. But where discovery is counsel’s objective, he must, before trial, avail himself of the remedies provided by G.S. 8-89 and 8-90. Clearly, the court should not and will not delay the trial while a party examines in detail a corporation’s books and records which he has subpoenaed for the day of the trial. Yet plaintiffs argue that the court’s action in quashing, on the day of the trial, the subpoena which they had issued the day before trial deprived them of documentary evidence “to effectively prove their case and impeach defendant’s testimony.” Whether a detailed examination of (1) the corporate defendant’s stock book; (2) any and all agreements “between defendant corporation and any and all persons and entities” relating to investments in defendant corporation; (3) “all preliminary and final feasibility studies” (subject undisclosed) had by the corporate defendant during February and March 1964; (4) “cash flow prognostications used in determining or attempting to determine financial needs” of defendant corporation during January, February and March 1964; and (5) “all estimates by consulting engineers of necessary equipment and construction to put Station on air” would have disclosed evidence material to plaintiffs’ case we have no idea. Plaintiffs’ right to examine the items listed in the subpoena duces tecum should have been determined before trial in a proceeding under G.S. 8-89 or 8-90 — not by the judge on the day of the trial. Prima jade, plaintiffs’ attempt to subpoena the specified records and documents, was a “fishing or ransacking expedition” which the law will not permit either by subpoena duces tecum or a bill of discovery. Griners’ & Shaw, Inc. v. Casualty Co., 255 N.C. 380, 385, 121 S.E. 2d 572, 575. *700 The heart of plaintiffs’ case was the amount of money which Mr. Sledge (and perhaps Messrs. Wall and Gibson) had invested in defendant corporation. To the extent that items 1 and 2 would have disclosed these sums, those documents were material to the inquiry; but even under G.S. 8-89 and 8-90, plaintiffs would not have been entitled to discover defendants’ dealings with other persons. An order of examination is- “only in respect to those matters which relate to the action. . . .” Griners’ and Shaw, Inc. v. Casualty Co., supra. Yet plaintiffs attempted to subpoena the corporate stock book and “any and all agreements between Cape Fear Telecasting, Inc., or any of its agents with any and all persons or entities relative to stock purchases or financing or investments in Cape Fear Telecasting, Inc.” Plaintiffs had no legitimate interest in “any and all agreements” of this type. His Honor, with sound legal reason, was not satisfied that the documents plaintiffs sought to subpoena were material to the case. His action in quashing the subpoena will not be disturbed. Almost certainly, the amount of the investment by Messrs. Sledge, Wall, and Gibson in defendant corporation was a matter within the knowledge of its president, Mr. Broadfoot, who had negotiated with them and whom plaintiffs examined as an adverse witness. Since it was their money which enabled the corporation to begin broadcasting, it is unlikely that he had forgotten the amount they invested. Yet, in the face of the allegation in the answer that this amount was $20,000.00, plaintiffs studiously avoided questioning Broadfoot with reference to this crucial point. Had they asked him for the specific information, and had he hedged, suffered a lapse of memory, or been unable to answer positively, his Honor would, upon motion, doubtless have required the production of the necessary records. It is also noted that plaintiffs based their right to recover solely upon the express contract which they alleged. Although our practice would have permitted, they offered no evidence, and tendered no issues, with reference to the reasonable value of their services in procuring the investment in defendant corporation attributable to Sledge. Cline v. Cline, 258 N.C. 295, 128 S.E. 2d 401; Gales v. Smith, 249 N.C. 263, 106 S.E. 2d 164; Thormer v. Mail Order Co., 241 N.C. 249, 85 S.E. 2d 140. They proceeded on the theory that they were entitled to recover $6,500.00 or nothing. The jury answered the issue NothiNG, and in the trial we find No error. Moore, J., not sitting.