Raia v. WWL-TV

HAMITER, Justice.

In this defamation action instituted by Jacob J. Raia against WWL-TV, Loyola University of New Orleans, Leo Willette, Aaron Kohn and the Metropolitan Crime *1098Commission of New Orleans, Inc., the plaintiff having alleged in his petition that certain published statements for which the defendants are responsible caused damage to himself and to his business, the issues presently before us arise out of an interlocutory, ex parte, discovery order issued by the district judge.

Following the filing of their several answers the defendants, specifically on January 12, 1965, obtained the ex parte order directing the plaintiff to produce certain described documents and other information in the office of M. Hepburn Many (who is counsel for two of the defendants) for inspection and copying. The motion on which the order was predicated alleged that the defendants “desire plaintiff to produce to movers for inspection and copying or photographing, for discovery purposes pursuant to Article 1492 C.C.P., at the office of M. Hepburn Many * * * ” the said documents and information, all of which related principally to the operation of plaintiff’s business that was allegedly damaged.

Thereafter, the plaintiff moved to quash the discovery order and, pursuant to the motion, the judge “Ordered that the defendants, through their counsel, do appear in person and show cause on Friday, January 22, 1965, at 10:30 o’clock A.M., why the Order sought by them should not be quashed, rescinded, annulled and vacated.”

On the designated return date the rule to show cause was heard, with all litigants (represented by their respective counsel) being present. Following the hearing the district court rendered a judgment overruling the motion to quash filed by plaintiff and ordering him to produce the documents and information originally requested by defendants. In the formal, signed judgment, preceding the decreeing clauses, the judge declared that the matter “came on for hearing January 22, 1965”; that he had “considered the pleadings and argument” of counsel; and that he was “of the opinion that the law and evidence is in favor of respondents.”

Plaintiff’s application to the Court of Appeal (Fourth Circuit), for relief from such ruling, was denied. That tribunal stated: “Writs refused. The showing made by relator does not warrant the exercise of our supervisory jurisdiction.”

Subsequently, we issued writs under our supervisory powers to consider the regularity of the proceedings in the district court.

Here, the plaintiff primarily attacks the initial ex parte order and the judgment which overruled his motion to quash. He urges that the original order was improvidently issued inasmuch as (1) the motion on which the order was founded did not set forth “good cause”, as required by Article 1492 of the Louisiana Code of Civil Procedure, it merely reciting that defendants desired to obtain the documents and information described therein; and (2) *1100such an order cannot be issued except after the holding of a contradictory proceeding. He attacks the judgment overruling his motion to quash on the ground that at the hearing of such motion no evidence was adduced respecting “good cause”, the court having merely heard argument of counsel as to the propriety or the validity of the ex parte order. Further, plaintiff complains of that part of the initial order requiring that the documents he produced in the office of adverse counsel instead of in some neutral place.

The defendants, on the other hand, insist that the original ex parte order was properly issued, they contending (1) that the nature of the documents and information sought, when considered in the light of the issues raised by the pleadings and of plaintiff’s own testimony given in a deposition previously taken by them from him, bespeaks the “good cause” for and materiality of the items requested; and (2) that there is no requirement in our law that such an order be obtained after a contradictory hearing. Alternatively, they urge that any irregularity in the original order was cured by the contradictory hearing on the motion to quash at which the court considered the issues of relevancy and of “good cause” and rendered a judgment favorable to them. Further, they say that the place for production of the documents and the other information sought is of no moment or importance.

It is true that plaintiff alleged in his application for supervisory writs and argues in his brief that no evidence was taken at the contradictory hearing on the motion to quash. Moreover, no evidence appears in the transcript furnished to us. However, there is no certificate of the clerk or of the judge of the district court that such transcript is complete. Nor are there any minutes of the district court contained therein which would contradict the judge’s recitation in his judgment that the law and evidence were in favor of these defendants. Hence, under these circumstances, we must invoke the well recognized presumption that the judge a quo had before him sufficient evidence and reasons to support the rulings complained of. Manning v. Shaw, 154 La. 717, 98 So. 163, Stout v. Henderson, 157 La. 169, 102 So. 193, Giglio v. Giglio, 159 La. 46, 105 So. 95, Williams v. Burnham et al., 185 La. 791, 171 So. 33, Maurer v. Haefner, 192 La. 929, 189 So. 579. Cf. Otis v. Sweeny, 43 La.Ann. 1073, 10 So. 247.

Having found that there was a contradictory hearing on the motion to quash anent the validity of the initial discovery order which resulted in a judgment maintaining it in full force and effect, it becomes unnecessary for us to determine whether or not such order was properly obtained in the first instance (on this question we do not now express an opinion).

*1102This conclusion is in keeping with our decision in refusing an application for supervisory writs in Ackermann v. Columbia Casualty Company et al., 247 La. 354, 170 So.2d 868. In that case the same procedure was followed as occurred here, an ex parte discovery order having been maintained by a judgment overruling a motion to quash following a contradictory hearing on such motion (although the record therein affirmatively showed the taking of evidence).

With respect to that portion of the ex parte order attacked herein which requires production of the documents and the other information in the office of opposing counsel, we find no error. In this connection plaintiff argues that “To require relator to go to the office of the adverse parties’ attorney and then and there make discovery is repulsive, unfair and smacks of a variety of star chamber proceeding. * * * ” • The only authority cited to sustain such argument consists of cases dealing with the taking of depositions which we do not consider to be analogous to the inspection and photographing of documents. The reasons for not requiring an individual to go into a hostile environment for submission to questioning clearly do not apply to document copying. Again, in the absence of a showing of special cause in a particular case, there appears no good reason why mature, educated members of the bar should not be able to effect the inspection and photographing of documents in the office of one or the other without repulsion and recriminations. Furthermore, the identical question was presented in the Ackermann case, cited supra, and there it was decided adversely to the position of this plaintiff.

In a third assignment of error the plaintiff asserts that the order complained of constitutes discrimination and a denial of due process as guaranteed by the Fourteenth Amendment of the United States Constitution. Plaintiff does not elaborate on this assertion, and we are at a loss to understand how the procedure followed by the district judge in any way involved discrimination or lack of due process, particularly in view of the fact that there was a contradictory hearing in connection with the motion to quash. Hence, there is no merit in the contention.

Finally, plaintiff assigns as error the refusal of the Court of Appeal to exercise its supervisory jurisdiction, he asserting that this constituted an abuse of the discretion vested in that tribunal. We deem it unnecessary to discuss this alleged error; for upon our issuing the supervisory writs, and our ordering the case here for a review, the action of the Court of Appeal became moot and immaterial.

For the reasons assigned the supervisory writs issued by us are recalled and the rule to show cause is discharged and vacated. Plaintiff shall pay the costs of this particular proceeding. All other costs shall *1104await the final determination of the litigation.

FOURNET, C. J., concurs in the decree. SUMMERS, J., dissents and assigns reasons.