Goss v. Crossley

88 F.R.D. 518, 30 Fed. R. Serv. 2d 761, 1980 U.S. Dist. LEXIS 11019
CourtDistrict Court, D. Hawaii
DecidedApril 21, 1980
DocketNo. 76-0512(29); Civ. No. 79-0037
StatusPublished
Cited by25 cases

This text of 88 F.R.D. 518 (Goss v. Crossley) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goss v. Crossley, 88 F.R.D. 518, 30 Fed. R. Serv. 2d 761, 1980 U.S. Dist. LEXIS 11019 (D. Haw. 1980).

Opinion

MEMORANDUM OF OPINION

PENCE, Senior District Judge.

Plaintiff John T. Goss, Trustee of the Chapter X Estate of The Hawaii Corporation (“Trustee”) seeks to compel Defendant Coopers & Lybrand (“Coopers”) to produce various documents related to an action filed by Trustee on behalf of The Hawaii Corporation (“THC”). This Court concludes that Trustee is entitled to the requested documents subject to an appropriate protective order.

FACTUAL BACKGROUND

In December 1976, THC, following a series of financial setbacks, filed a petition for relief under Chapter XI of the Bankruptcy Act. These proceedings were thereafter converted to a Chapter X reorganization proceeding, and on December 15, 1978, the Chapter X Trustee filed a complaint on behalf of THC charging its former directors and officers with negligence and the breach of various fiduciary, contractual, and statutory duties. In investigating these claims, Trustee obtained through discovery certain documents from Coopers, an independent auditing firm. Although Coopers was not at the time of discovery a party defendant to Trustee’s action, Coopers had earlier conducted audits of THC for the fiscal years ending March 31,1973,1974, and 1975. The working papers from these audits were included in the documents produced by Coopers. In fact, Coopers made the working papers available to Trustee, his attorneys, and his accountants three times in response to separate discovery orders.

Subsequently, Trustee elected to prosecute claims against Coopers, joining Coopers as a party defendant in his second [521]*521amended complaint filed herein on June 27, 1979. Trustee asserted that THC had retained Coopers as an independent auditor to determine the propriety of the accounting principles employed by THC, to ascertain the adequacy of THC’s internal accounting controls, and to correct any errors or omissions in THC’s books, records and accounts which materially misstated the financial condition and results of THC operations. In performing these tasks, however, Coopers allegedly acted negligently and recklessly, failed to disclose to THC certain material facts, rendered opinions and reports which were false and misleading in material respects, and breached its contractual obligation to competently perform auditing services for THC. As a result, Trustee contends that THC and others mistakenly believed that the corporation was solvent and viable, and entered into a series of ill-advised transactions which would not have otherwise occurred.

On July 17, 1979, Trustee served his first request for production of documents directed to Coopers as a defendant requesting that Coopers produce and permit inspection and copying of the following documents:

(1) All documents and files in the possession, custody, or control of Defendant Coopers & Lybrand relating to THC and any of its divisions and subdivisions which were prepared, received, compiled or collected by Coopers & Lybrand at any time between January 1, 1970 and November 10, 1976 (“working papers”).

(2) All personnel files and documents contained therein, including, without limitation, all performance evaluations and similar periodic evaluations of all partners of Defendant Coopers & Lybrand who were involved in any audit of THC and of all managers and supervisors employed by Coopers & Lybrand in any audit of THC (“personnel files”).

Coopers, however, refused to produce the foregoing documents on the grounds that many of the documents sought had previously been made available to and were actually examined by Trustee three times, and further production was, therefore, “oppressive and unduly burdensome.”1 Coopers also objected for the reasons that inspection would cause “annoyance” and “embarrassment” and that the request was “overbroad and encompasse[d] irrelevant material.”2

DISCUSSION

The dispute between Coopers and Trustee over the discoverability of Coopers’ working papers and personnel files revolves around the proper interpretation of certain provisions of the Federal Rules of Civil Procedure. Rule 34(a) authorizes requests to produce, inspect and copy designated documents relating to any matter within the scope of the examination permitted by Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served. Rule 26(b), in turn, permits the examination of any matter, not privileged, which is relevant to the subject matter involved in the pending action. The standard of relevancy prescribed therein embraces not merely documents which would be admissible in evidence, but also any documents “reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b); 4 Moore’s Federal Practice ¶ 26.56, at 26-116 (2d ed. 1979).

Rule 26(c), however, places a general restriction on the ability of parties to obtain discovery:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense .

Working Papers

Coopers does not dispute the fact that the relevancy requirement of Rule [522]*52226(b) poses no obstacle to Trustee’s efforts to obtain discovery of the working papers. Coopers instead argues that because the working papers were previously made available to, and examined by, Trustee’s representatives on three separate occasions, to compel it to undergo the expense of producing those papers a fourth time would be “oppressive and unduly burdensome” as comprehended by Rule 26(c).

This court cannot agree. Trustee’s earlier inspections of the requested working papers occurred before Coopers became a party to this action and, thus, careful consideration may not have been given to documents relevant to possible claims against Coopers and important information may have been overlooked. Since Coopers is now a defendant in this action, Trustee should be given a final opportunity to review the working papers with the action against Coopers specifically in mind. At the same time, however, fairness demands that THC bear any costs reasonably associated with Coopers’ employees who are required to oversee Trustee’s inspection of the working papers.

Personnel Files

The more difficult question which faces this court is whether Coopers should be compelled to produce its personnel files and evaluations of employees involved in the THC audit. Whether such documents fall within the permissible scope of discovery is an unsettled question.3

As previously set forth, discovery is appropriate where the material sought is relevant and not privileged, Rule 26(b); unless, in light of the circumstances, the material sought is entitled to special protection under Rule 26(c). In an action based upon an auditing firm’s negligent or otherwise improper performance of its professional duties, the relevance requirement is normally satisfied by the fact that the personnel files and employee evaluations should evince the qualifications, experience, and professional competence of individual auditors.

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Cite This Page — Counsel Stack

Bluebook (online)
88 F.R.D. 518, 30 Fed. R. Serv. 2d 761, 1980 U.S. Dist. LEXIS 11019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goss-v-crossley-hid-1980.