October 31, 1941.
Albert Karnes, of Paducah, Ky., for plaintiff.
E. Palmer James and Wheeler Shelbourne, all of Paducah, Ky., for defendant.
Action by George Archer, for and in behalf of himself and all employees of Melvin Cornillaud, doing business as the West Kentucky Motor Company, and as agent for the said employees, against Melvin Cornillaud, doing business as the West Kentucky Motor Company, for unpaid wages allegedly due from the defendant under the Fair Labor Standards Act of 1938. On plaintiff's motion to require defendant to produce and permit plaintiff to inspect, copy and photograph records, papers, books, etc., pertaining to nature and extent of defendant's business, and defendant's wholesale and retail transactions and interstate and intrastate transactions.
The plaintiff George Archer sues on behalf of himself and on behalf of all other employees of the defendant similarly situated to recover unpaid wages which he alleges to be due from the defendant under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.
The defendant by his answer denies the right of the plaintiff to sue on behalf of other employees alleged to be similarly situated but who are not named in the complaint. The answer also traverses many allegations of the complaint and pleads affirmative defenses, including the claims that the defendant's business was intrastate commerce instead of interstate commerce and was also predominantly a retail business exempt from the application of the Act. The plaintiff thereupon filed a motion that the defendant produce and permit the plaintiff to inspect, copy and photograph "all records, papers, books, accounts, contracts, and letters and other objects and tangible things which pertain to the nature and extent of the defendant's business and which more particularly pertain to the nature and extent of the defendant's wholesale and retail transactions and his interstate and intrastate transactions, and the names and addresses of the persons, firms, and corporations with which said transactions were had." The motion, which is signed only by the attorney for the plaintiff, further states that the documents, books and papers referred to contain evidence material to the matter involved in this action. The defendant objects to the order requested by the plaintiff's motion.
The Court has had several occasions recently to pass upon the right of an employee to prosecute an action like the present one on behalf of other employees alleged to be similarly situated, but not referred to in the complaint. The question is discussed in its opinion in Shain v. Armour Company, D.C.W.D.Ky., 40 F. Supp. 488. In accordance with the views expressed in that opinion the Court sustains as a matter of law the second defense set up by the defendant in his answer. The action will proceed on behalf of only those who show that they are similarly situated and indicate by the record herein their approval of this action in their behalf.
Plaintiff bases his claim to inspect and copy the documents, papers and books of the defendant upon Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. But his present motion goes far beyond the scope and purpose of that rule. It is well settled by numerous decisions that the rule was never intended to permit a party to engage in a "fishing expedition" among the books and papers of the adverse party. Not only must the plaintiff designate specifically the particular books and records that contain the information which he desires, but he must state facts showing that the information contained there is material to the issue. The mere statement of plaintiff's counsel that the information desired is material to the matter involved in the action is a conclusion. See Kenealy v. Texas Co., D.C.S.D.N.Y., 29 F. Supp. 502; Welty v. Clute, D.C.W.D.N.Y., 29 F. Supp. 2; Thos. French Sons v. Carleton Venetian Blind Co., D.C.E.D.N.Y., 30 F. Supp. 903; Sonken-Galamba Corp. v. Atcheson, Topeka, Santa Fe Ry., D.C.W.D.Mo., 30 F. Supp. 936; Vendola Corp. v. Hershey Chocolate Corp., D.C.S.D.N.Y., 1 F.R.D. 359; Courteau v. Interlake S.S. Co., D.C.W.D.Mich., 1 F.R.D. 525; Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786. The plaintiff's motion does not ask for designated documents but demands "all records, papers, books," etc. The plaintiff apparently admits that his motion is essentially a fishing expedition, when his counsel states in his reply brief that it is evident that there are fish in the defendant's pond and "we think that these fish should be caught and that we have the right to catch them."
Plaintiff's motion is overruled.