264 Mich. 495

DETROIT BAR ASS’N v. AMERICAN LIFE INSURANCE CO.

1. Discovery — Production op Private Papers — Witnesses.

Power of court to compel production, of private papers may only be exercised where person has books containing evidence material to issue before court, and where necessity for their production, and reasonableness of sueh action, is shown.

2. Same — Unreasonable Search — Constitutional Law — Judicial Question.

' Whether demand to produce private papers so exceeds limits of proper investigation as to amount to unreasonable search is always judicial question.

*4963. Same — Mandamus—Abuse of Discretion.

Unless appellant’s rights have been invaded, or unless abuse of discretion on part of trial court is shown, appellate court should not interfere with trial court’s order requiring appellant to produce private papers.

4. Mandamus- — Not Writ of Right.

Issuance of writ of mandamus is not matter of right but rather one of grace, and in absence of showing indicating reasonable necessity therefor, it should not be issued.

5. Same — Discovert—Production of Private Papers — Unreasonable Search.

Mandamus compelling trial court to revoke order requiring insurance company charged .with illegally engaging in practice of law to produce its books and other private papers is denied by Supreme Court, although said order may be too broad and too indefinite, where no reasonable effort to comply therewith has been made, and, in view of pleadings in case, there can be little uncertainty as to type or character of records sought to be produced.

Appeal from Wayne; Jayne (Ira W.), J.

Submitted June 20, 1933.

(Calendar No. 37,300.)

Decided October 2,1933.

Bill by Detroit Bar Association and others against American Life Insurance Company, a Michigan corporation, to eh join the alleged illegal practice of law. Prom order denying motion to recall and quash subpoena duces tecum, defendant appeals (in the nature of mandamus).

Writ denied.

George E. Brand and Ben O. Shepherd, for plaintiffs.

George E. Leonard and Harry F. Johnson (Fred H. Aldrich and Wilber M. Brucker, of counsel), for defendant.

North, J.

Plaintiff association alleges in its bill of complaint that the defendant is illegally engaged *497in the practice of law in the State of Michigan; and asserts incident thereto the defendant has caused advertisements to be printed, has sent written communications to its Michigan policyholders, and has represented to them and other residents of Detroit to whom defendant sought to sell insurance that it would render to them certain specified services which plaintiff alleges constitute the practice of law notwithstanding defendant is not legally licensed to practice law in this State. Plaintiff seeks to have defendant enjoined from continuing such practice. After the suit was at issue plaintiff caused to be served upon the president, vice-president, and executive vice-president of the defendant company a subpoena duces tecum requiring each of them to appear before the court to testify in the cause and to bring books, records, files, correspondence, and various other papers and memoranda of the defendant company. The portion of the subpoena duces tecum specifying the items to be produced is printed in the margin hereof.1 Upon being served with the sub*498poena, defendant filed a motion asking the court that it be recalled, canceled, and quashed. Specific objections were made to the subpoena, among which were the following: That the court had no jurisdiction to issue it in its present form, that to enforce it would violate the constitutional rights of defendant, would compel the defendant to incur great, unnecessary, and unreasonable expense, expose its records to danger of loss and injury incident to being brought into court, that confidential matters would be exposed, and that use of the items demanded as evidence against defendant would be illegal, unjust, and oppressive. After hearing the respective parties, the trial court denied defendant’s motion. Permission being granted, it has brought this appeal in the nature of mandamus to compel the circuit judge to grant the relief sought in defendant’s motion.

“The power of a court to compel the production of private papers can only be exercised where a *499person has books containing evidence material to the issue before the court, and where the necessity for their production, and the reasonableness of such action, is shown; and, until this foundation is laid, until their relevancy or character is specified, an order 'for their production in a case is a violation of the constitutional protection of the one compelled to produce them. An order limiting the examination of a party’s books to pertinent matters does not infringe the guaranty. * * *
“The question of whether the demand so exceeds the limits of proper investigation as to amount to unreasonable search is always a judicial one.” 56 C. J. p. 1170.

See, also, 28 R. C. L. p. 420.

Primarily this is a matter which has to do with the administration or conduct of the affairs of the trial court. Unless appellant’s rights have been invaded, or unless an abuse of discretion on the part of the trial court is shown, the appellate court should not interfere. The right of mandamus .sought by appellant is not a matter of right but rather one of grace. Lapham, v. Wayne Circuit Judge, 243 Mich. 154; Burgess v. Jackson Circuit Judge, 249 Mich. 558. In the absence of a showing indicating a reasonable necessity therefor, it should not be issued. While we think it clearly appears that this subpoena duces tecum is too broad in its scope and altogether too indefinite in its demands, it would be ill-advised for this court to interfere with the conduct of proceedings in a trial court until defendant has made a reasonable effort to comply with the subpoena served upon it. It is only fair to presume that notwithstanding the trial court declined to quash the subpoena nonetheless no more than a reasonably fair effort to comply with its demands will be required. In view of the pleadings in the case, *500there can be little, if any, uncertainty as to the type or character of defendant’s records which plaintiffs are demanding it produce. If a reasonable effort is made by defendant to comply with the subpoena, it is altogether probable that notwithstanding such effort in the first instance does not fully comply with the demands of the opposite party or satisfy the court as being a compliance with its process, further opportunity for compliance will be granted without penalty. Viewed in this light, we think there is no occasion for issuing the writ. It is therefore denied, but without costs to either party.

McDonald, C. J., and Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. Clark, J., took no part in this decision.

Detroit Bar Ass'n v. American Life Insurance
264 Mich. 495

Case Details

Name
Detroit Bar Ass'n v. American Life Insurance
Decision Date
Oct 2, 1933
Citations

264 Mich. 495

Jurisdiction
Michigan

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