(dissenting).
In this matter defendants filed a simple, short, unverified motion representing solely that defendants’ counsel “desire plaintiff to produce to movers for inspection and for copying or photographing, for discovery purposes pursuant to Article 1492, C.C.P. * * certain listed documents represented to he connected with a deposition alleged to have been taken on June 5, 1964. The deposition referred to is unavailable for our examination, it is not filed in the record and forms no part thereof.
This motion was granted ex parte by the trial judge without prior notice to plaintiff and ordered him to produce the documents at the office of defendants’ counsel for copying.
The authority relied upon to uphold this action is Article 1492 of the Code of Civil Procedure. That article permits the issuance of an order to produce and permit the inspection and copying of documents which are relevant “upon motion of any party 'showing good cause therefor.”
The meager allegation in the motion which formed the basis of the contested ex parte order is fatal to its validity. There has been an utter failure to show “good cause” here, even by allegation, if that were sufficient. The motion does not even contain an allegation that the documents to be copied were relevant. Nor is there a showing that the denial of the production of these documents would unfairly prejudice the defendants in preparing their claim or defense, or would cause hardship or injustice as specifically required by Article 1452. State Through Department of Highways v. Buckman, 239 La. 872, 120 So.2d 461 (1960).
The scope of the discovery permitted by Article 1492 is limited by the language of Article 1436 providing that “deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”
Another, and the most important limitation on discovery, is the affirmative requirement of Article 1492 that the movant must demonstrate “good cause”.
This requirement limits the freedom of action afforded a party who avails himself of Article 1492. Pie must initially establish, and the court must initially determine, in every case where a party seeks to have another party produce documents for copying, that good cause has been adequately demonstrated. This specific requirement of good cause would be meaningless if good 'cause could be sufficiently established by *1106merely showing that the desired material was relevant (which has not been shown here), for the relevancy standard has already been imposed by Article 1436. By adding the words “good cause” the legislature clearly indicated that there must be a greater showing of need under Article 1492 than under the other discovery rules.
This good cause requirement is not a mere formality, but is a plainly expressed limitation of that article. It is not met by mere conclusory allegations (or no allegation as in this case) of the pleadings — nor by mere relevance to the case — but requires an affirmative showing by the movant that each document, as to which examination is sought, is really and genuinely needed and the purpose for which it is sought is legitimate, or that good cause exists otherwise for ordering each particular examination. The ability of the movant to obtain the desired information by other means and the inconvenience, expense and prejudice to the party who must produce are also relevant factors.
Article 1492, then, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether a party requesting examination of documents has adequately demonstrated the existence of “good cause”. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921 (4th Cir. 1962); Annot., 86 A.L.R.2d 138, 150 and 182 (1962).
This determination, of course, must be based upon evidence in the record which is subject to review on appeal. From this record there must be a comparative evaluation of competing claims of need and prejudice. United Air Lines, Inc. v. U. S., 26 F.R.D. 213 (D.C.Del.1960). It is obviously not feasible to fairly accomplish this last objective by ex parte proceedings. For this reason I am convinced that an adversary proceeding is contemplated in such cases and is essential to attainment of the law’s objective.
Furthermore, an adversary proceeding is clearly required by the code when it says: “If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.” La. Code Civ.P. art. 963. I submit that in no instance, without hearing the adverse party, is a mover “clearly” entitled to copy and examine documents of a litigant, his counsel or witness.
Thus, upon the trial of the motion to quash the ex parte order, plaintiff had only to show the documents, facts and circumstances surrounding the issuance of that order. Upon this showing, which, in effect, simply involved the production of the mo*1108tion and order (which was done), plaintiff was entitled to have the order set aside. The dearth of allegations in the motion and the complete lack of any other evidence to support it presented a clear case for quashing the order.
Evidence presented by defendants on the motion to quash could not serve to cure the initial error which occurred when the order was issued without good cause. However, other than the stereotype phi'aseology in the trial court’s judgment overruling the motion to quash to the effect that “the law and the evidence is in favor of respondent,” there is nothing in the record which shows that any evidence was taken upon the motion to quash. Thus the conclusion of the trial judge that “the law and the evidence is in favor of respondent” merely compounds the error committed at the outset, for the record does not support the conclusion that there was any evidence in favor of respondent. Surely, evidence outside the record is no evidence.
I recognize, as I must, the wisdom of the rule that the trial judge is to be accorded a wide latitude and much discretion in such matters. But I cannot subscribe to the proposition that that discretion is without any rein whatever. Yet, if the opinion of the majority stands, that will be the situation, for there is nothing in this record by which that discretion can be judged on review.
I respectfully dissent.