Iwamoto v. Hirata

DISSENTING OPINION OE

CASSIDY, J.

While our rules of civil procedure should be liberally construed, “they should not be expanded by disregarding *517plainly expressed limitations.” Schlagenhauf v. Holder, 379 U.S. 104, 121.

Production of documents under H.E.O.P., Eule 34, is expressly limited by the requirement that a showing of “good cause” be made. Eelevancy or materiality can not be equated to good cause under the rule. Schlagenhauf v. Holder, supra; Guilford National Bank v. Southern Ry., 4 Cir., 297 F.2d 921; Groover, Christie & Merritt v. LoBianco, D.C. Cir., 336 F.2d 969; Hauger v. Chicago, Rock Island & Pacific R.R., 7 Cir., 216 F.2d 501.

The “good cause” requirement of Eule 34 is equally applicable when the document sought is a statement of a party to the action. Safeway Stores v. Reynolds, D.C.Cir., 176 F.2d 476; Shupe v. Pennsylvania R. Co., W.D. Pa., 22 Fed. Rules Serv. 34.411 Case 3, W.D. Pa.; Carman v. Fishel, Okla., 418 P.2d 963.

The motion for production before us rests on the bare allegation that defendant’s statement to his insurance carrier constituted or contained “evidence relevant and material to the matter involved in this action.” It was presented as being “based upon the records and files herein and more specifically defendant’s answer to Interrogatory No. 49.” Plaintiff made no attempt to support the motion in the manner prescribed by H.E.C.P., Eule 43(e). On the hearing thereof the motion was augmented only by an inconclusive colloquy between the court and counsel on when the defendant’s statement might have been made.

Under the express limitation of Eule 34 plaintiff’s motion for production is, as I think the majority recognize, patently insufficient to warrant the relief thereby sought. And as I am of the opinion that the deficiency in the defendant’s response to Interrogatory No. 49 can not be employed to cure the insufficiency of the motion, I would reverse.