Opinion
June 20, 1950. Rehearing Denied July 21, 1950.
Petition for review from the Circuit Court for Dade County, Stanley Milledge, J.
Hunt, Salley Roman, Miami, for appellant.
Morehead, Pallot Forrest, Miami, for appellee.
In a divorce suit between Tatem Wofford and his wife, Patricia Wofford, the chancellor entered the following order pursuant to Rule 49, Equity Rules of Practice, 31 F.S.A.
"This cause came on to be heard after due notice, upon the motion of the Defendant to require the Plaintiff to produce certain books and records, and upon the oral application of the Defendant to require the Plaintiff to disclose the identity and location of persons having knowledge of relevant facts, and was argued by counsel. Thereupon, it was
Ordered, Adjudged and Decreed as follows:
"1. That the Plaintiff deliver to the Defendant or her designated agent or attorney, for examination at a place to be selected by the Defendant, all checks, bank books and statements (including books, checks and statements of Federal Savings and Loan Associations), books, records and all documents, correspondence or other writings that are either in the possession of or under the control of the Plaintiff or any of the employees, agents or attorneys of the Plaintiff or the corporation hereinafter named, which in any way concern, affect or pertain to the operation of the following properties and legal entities, for the period beginning December, 1938, to and ending June 30, 1949:
"(a) The Hotel and Cabanas known as The Tatem Surf Club, located at 4343 Collins Avenue, Miami Beach, Florida.
"(b) The property known as the Tatem Sky Club, located at Cashiers, North Carolina.
"(c) The partnership composed of the Plaintiff and the Defendant, as well as the partnership composed of the plaintiff and the Defendant individually, and as trustees for their daughter, Margaret Ora Wofford Melvin.
"2. That the Plaintiff deliver to the Defendant or her designated agent or attorney, for examination at a place to be selected by the Defendant, all of the documents described in Paragraph 1 above, that are either in the possession of, or under the control of the Plaintiff, or any of the employees, agents or attorneys of the Plaintiff, or Tatem Properties, Inc., a Florida Corporation which in any way concern, affect or pertain to the business property or affairs of said corporation from its formation on February 17, 1947, to June 30, 1949.
"3. That the plaintiff make available for examination by the Defendant, or her designated agent or attorney, in a suitable room or office in said Tatem Surf Club, or in the office of any auditor or bookkeeper away from said hotel where the documents may be located, all of the documents described in Paragraph 1 above, which concern, affect or pertain in any way to any of the properties and legal entities hereinabove described covering the period from June 30, 1949, to and including the date of the examination thereof by the Defendant or her agent or attorney.
"4. That in the event any of the documents hereinabove described are in the possession or control of any person other than the Plaintiff, the Plaintiff shall deliver to the Defendant or her attorney, within three days from the date of this Order, a written general description of such documents (sufficient to identify them) together with the names and addresses of all persons who have custody or control of them and shall direct such other persons to forthwith deliver such documents to the Defendant or her attorney if they cover the period prior to June 30, 1949, and to allow the Defendant or her designated agent or attorney to examine them and make copies thereof if they cover any period after June 30, 1949.
"5. If any of such documents have heretofore been lost or destroyed, the Plaintiff shall, within three days from the date of this Order, deliver to the Defendant or her attorney, a written general description of such lost or destroyed documents (sufficient to identify them) with a statement of whether they have been lost or destroyed, and the approximate date of such loss or destruction as the case may be.
"6. The Court has been advised that some of the documents hereinabove described are or may be in the possession of, or under the control of one C. Leo DeOrsey, the attorney for the Plaintiff in the tax case now pending in the Tax Court of the United States, which case is set for trial during the week of April 10, 1950. If such documents are in the custody or control of such attorney, or any other attorney who represents the Plaintiff in said tax case, the Defendant or her designated agent or attorney shall be permitted to examine them and make copies thereof, but such examination and copying shall be conducted in such a way as not to interfere with the preparation and trial of said tax case.
"7. That the Plaintiff shall forthwith deliver to the attorney for the Defendant a statement in writing disclosing the identity and location of all persons known by the Defendant to have knowledge of any facts relevant to this cause, and particularly that such disclosure shall include the names and addresses of all detectives employed by the Plaintiff to gather evidence for use in this cause, and the name and address of the Detective Agency which employed such detectives."
Rule 49 reads: "On the motion of any party, after reasonable notice, the court may order any other party or parties to produce books, records and papers containing or believed to contain evidence pertinent to the cause of action or defense of the movant which are in the possession or control of the party or parties named in the motion and order, either for inspection before or use at the trial, at such time or times and under such reasonable terms and conditions as may be prescribed by the court in its order on such motion."
This Court has not construed this rule. It is taken somewhat from Federal Rules of Civil Procedure, rule 34, 28 U.S.C.A. The Federal Courts have many times construed the latter; holding that it does not contemplate the delivery to the opposite party of records en masse which might be found to be material. See Stewart-Warner Corporation v. Staley, D.C. Pa., 4 F.R.D. 333; Fort Wayne Corrugated Paper Company v. Anchor Hocking Glass Corporation, D.C. Pa., 4 F.R.D. 328; Thomas French Sons v. Carleton Venetian Blind Company, D.C.N.Y., 30 F. Supp. 903; Heiner v. North American Coal Corporation, D.C. Pa., 3 F.R.D. 63; Federal Trade Commission v. American Tobacco Company, 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786. Our rule, as the Federal, seems to contemplate production for reasonable inspection and use in the trial of a case. It was never intended that possession of vast quantities of records would simply pass from one litigant into the hands of another.
We hold that this order was too broad and having reached this conclusion deem it unnecessary to pass upon the other order brought into question by this petition.
The writ is granted and the order is quashed.
So ordered.
TERRELL, THOMAS and ROBERTS, JJ., concur.