# Southern Mill Creek Products Co. v. Delta Chemical Co.

> District Court of Appeal of Florida · October 10, 1967 · 203 So. 2d 53

URL: https://www.frixlaw.com/law-library/cases/7424536

## Case

- **Full name:** SOUTHERN MILL CREEK PRODUCTS CO., Inc., a Florida corporation v. DELTA CHEMICAL COMPANY, a Florida corporation
- **Court:** District Court of Appeal of Florida
- **Decided:** October 10, 1967
- **Citations:** 203 So. 2d 53; 1967 Fla. App. LEXIS 4409
- **Precedential status:** Published
- **Opinion:** Dissent by Pearson
- **Judges:** Hendry, Pearson, Swann
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7424536

## Opinion text

PEARSON, Judge
(dissenting).
The decision of the majority, which holds that the trial judge has departed from the essential requirements of law in denying petitioner’s motion to dismiss, seems to me to introduce a dangerous precedent into our *56 practice. For that reason I am impelled to dissent and briefly set forth the grounds.
It will be noted that the trial judge is held to have departed from the essential requirements of law because he failed to grant a motion of the defendant for the production of a mechanical recording of a telephone conversation. The conversation which it is claimed was recorded by the plaintiff was a conversation between the president of the plaintiff corporation and the president of the defendant corporation. The existence of the recording was discovered at the time that the defendant took the deposition of the plaintiff president. Under these circumstances the president of the defendant corporation is informed as to the subjects and the content of the conversation, as well as the president of the plaintiff corporation. The only advantage that the plaintiff president has is that he may use his recording to refresh his memory and possibly to corroborate his statements concerning the content of the conversation.
Defendant’s motion to produce the recording was made under Florida Rules of Civil Procedure 1.350. This rule provides that the court may (not shall) order any party to produce any designated documents, papers, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence relating to any of the matters within the scope of a deposition pending action. I think it is well established that the trial judge should have the control of the process of discovery and that he should have the power to limit it in order to prevent abuse which will increase the time and expense of litigation. See Carson v. City of Fort Lauderdale, Fla.App.1965, 173 So.2d 743 ; Pembroke Park Lakes, Inc. v. High Ridge Water Co., Fla.App.1966, 186 So.2d 85 .
Under the circumstances of this case where the evidence sought to be discovered is already known and may properly be subpoenaed for use at the trial, I would not hold that the trial judge abused his discretion to the point of departing from the essential requirements of law.
I would therefore deny the petition for writ of certiorari.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7424536. Public record. Not legal advice.