ROBERT S. WOLFE vs. MASSACHUSETTS PORT AUTHORITY.

TAURO, C.J. The plaintiff, an attorney, brought this bill in equity in the Superior Court, seeking discovery of certain toll receipts and tickets from the Maurice J. Tobin Memorial Bridge (Tobin bridge). The defendant's demurrer was overruled and a decree pro confesso was entered when the defendant failed to answer in a timely fashion. The defendant appealed from the interlocutory decree overruling its demurrer, from the entry of a decree pro confesso, and from the final decree granting the plaintiff's bill of discovery.

The decree taking the bill for confessed established as true all facts properly pleaded. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 476 (1927). Publico v. Building Inspector of Quincy, 336 Mass. 152, 153 (1957). Bright v. American Felt Co. 343 Mass. 334,336 (1961). St. Martin v. Spinner, 347 Mass. 774 (1964). We summarize briefly the pertinent facts presented in the plaintiff's bill. On May 11, 1973, at approximately 4 P.M. the plaintiff's client, one Jesse K. Brown, was driving north on the Tobin bridge, operated by the defendant, Massachusetts Port Authority. Brown had just passed through the toll booth area when a wheel from an unidentified tractor-trailer combination struck him in the face. The wheel inflicted serious injuries, including fractured bones in his face and the loss of an eye.

The plaintiff, acting for the injured man, brought this bill to compel production of toll receipts and tickets collected on the Tobin bridge in the hour between 3:30 P.M. and 4:30 P.M. on that day. The plaintiff alleged that examination of these receipts and tickets may disclose the identity of the tractor-trailer responsible for his client's injuries and may permit initiation of proceedings at law for damages.

The principal question presented by the defendant's appeal is whether, as matter of law, these facts set forth a cause of action for discovery against a public authority

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which is not a party to any suit pending or contemplated by the plaintiff.

The instant bill is for discovery alone. No other relief is sought. Such a bill comes within the historic ancillary jurisdiction of the equity court. [Note 1] Cavanaugh v. McDonnell & Co. Inc. 357 Mass. 452, 454 (1970). See MacPherson v. Boston Edison Co. 336 Mass. 94, 100 (1957). "It is settled that a bill of discovery may be maintained, to aid the plaintiff in a suit which he intends immediately to bring,as well as in a suit already brought, if the bill discloses a cause of action." Post & Co. v. Toledo, Cincinnati, & St. Louis R.R. 144 Mass. 341, 347 (1887). Statutory procedures for propounding interrogatories have not supplanted this equitable action. Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629, 633 (1948). Cavanaugh v. McDonnell & Co. Inc. 357 Mass. 452, 454 (1970). When the bill seeks discovery alone, discovery is available "in circumstances (a) where the statutory procedure was inadequate to obtain the necessary information and (b) where the information sought could have been obtained under a pre-1851 bill for discovery." MacPherson v. Boston Edison Co. 336 Mass. 94, 100 (1957). Thus, rather than supplanting the bill of discovery, statutory remedies are supplemented by it.

Massachusetts courts have not favored the use of the bill of discovery when, as in the instant case, the bill is filed against one who is not a prospective party, but is a stranger to potential litigation or only a potential witness. American Security & Trust Co. v. Brooks, 225 Mass. 500, 502 (1917). However, there are significant exceptions to this disfavor. Discovery has been ordered against corporate officers, though the corporation itself and its shareholders were the only possible parties to the anticipated suit. Post & Co. v. Toledo, Cincinnati, & St. Louis R.R., supra. It has been

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suggested that agents may be required "to disclose facts concerning litigation in which their principals are parties." American Security & Trust Co. v. Brooks, supra.

We believe that the defendant comes within another exception which permits bills of discovery against nonparties. In a proper equitable suit, a public instrumentality, though not a party to anticipated litigation, may be compelled to make information available to a private plaintiff. The Massachusetts Port Authority was created to perform "essential governmental functions" for the "welfare of the commonwealth." St. 1956, c. 465, Sections 2, 17,27. It was created to own and manage State properties in a businesslike manner (see Boston v. Massachusetts Port Authy. 364 Mass. 639, 654 [1974], and maintains at all times a close connection to State operations. Cf. Massachusetts Port Authy. v. Treasurer & Recr. Gen. 352 Mass. 755 (1967). The Massachusetts Port Authority benefits from exemption from local property taxes (St. 1956, c. 465,Section 17), and from its power to take property through eminent domain. St. 1956, c. 465, Section 3 (k). See Loschi v. Massachusetts Port Authy. 354 Mass. 53 (1968), cert. den. 393 U.S. 854 (1968). Massachusetts Port Authy. v. R.S.R. Realty Co. Inc. 358 Mass. 545 (1971). Its entire character is public, not private.

The public character of the Authority, in our view, is crucial to the analysis of this case. The prior cases which denied use of the equitable bill of discovery against those who were not parties to litigation involved bills against private parties. E.g., American Security & Trust Co. v. Brooks, 225 Mass. 500 (1917). The courts in those cases zealously guarded the privacy of nonparties from intrusions. Such intrusions were the "abuses" against which the "salutary rule" of the Brooks case sought to protect strangers to litigation and potential witnesses. American Security & Trust Co. v. Brooks, supra, at 504. [Note 2] A public

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instrumentality, subserving public ends and the public welfare, does not have the same interest in privacy that the individual possesses. On occasion the public instrumentality may require confidentiality in its correspondence or operations, but generally its documents should be available to the public on a showing of need in an equity court. [Note 3] Cf. Lefebure v. Somersworth Shoe Co. 93 N.H. 354 (1945). We hold that a bill of discovery against a public instrumentality is not subject to demurrer if, in his bill, the plaintiff (1) has properly described an ongoing or contemplated cause of action for which information is

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needed and (2) has alleged sufficient facts to demonstrate the inadequacy of statutory interrogatories and the essentiality of the bill of discovery as an aid to the plaintiff's position in the court proceeding in the cause of action.

At a hearing on the merits of the bill, the public instrumentality may object to discovery of confidential or excessively numerous documents. The trial judge, in his discretion, may then dismiss the bill or order discovery in whole or in part. The judge should be particularly sensitive to assure that the bill addresses a "limited purpose" for which it provides a "practical and reasonable" discovery procedure and that the relief granted is within these parameters. See MacPherson v. Boston Edison Co. 336 Mass. 94, 105 (1957).

In the instant case, the plaintiff's bill of discovery alleges facts adequate to describe a potential cause of action. Brown has suffered severe injuries in a collision with a wheel from a tractor-trailer. On the face of the bill, he seems to be an innocent victim with grounds to initiate suit against the owner of the tractor-trailer.

The bill also alleges sufficient facts to justify recourse to the bill of discovery. Though he apparently can prove most facts basic to his cause of action, Brown cannot bring his action at law to recover damages for his injuries until he identifies the defendant to the action. Statutory interrogatories manifestly will not assist him in the absence of an action at law. He must succeed in this equitable action if he is to have any hope of remedy.

Thus, the plaintiff, in his bill, cleared the two obstacles which a demurrer could raise to this bill of discovery. He alleged a prospective cause of action and a specific need for discovery through equitable procedures. It was open to the Authority to contest the bill on the merits. This the Authority failed to do. The judge entered a decree pro confesso which ordered the Authority to tender truck operators' toll receipts collected between 3:30 P.M. and 4:30 P.M. on May 11, 1973, to the plaintiff.

On the Authority's appeal from this final decree, we must ascertain only that the facts established by the decree pro

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confesso authorized entry of this particular decree for the plaintiff. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 476 (1927). Bright v. American Felt Co. 343 Mass. 334, 336 (1961). We conclude that the decree was properly entered. On the record before us there seems no likelihood that this decree of discovery would burden the Authority's operations (see Direct-Mail Serv. Inc. v. Registrar of Motor Vehicles, 296 Mass. 353, 357 [1937]) or prove unreasonably difficult in compliance. In fact, even in this appeal, the Authority does not seek to raise hardship as a ground of reversal. The Authority stands on the single ground that legally it has discretion to restrict access to these documents. This we cannot accept.

Brown is entitled to discovery. The demurrer was properly overruled. The interlocutory and final decrees are to be modified by substituting Jessie K. Brown, the true party in interest, for Robert S. Wolfe as the plaintiff. As so modified they are affirmed. The plaintiff is to have costs.

So ordered.