Opinion
Action by Steve Sekely against Miguel Salkind, and another for breach of contract. Defendants filed a notice for examination of plaintiffs and calling for production of certain documents relating to contract alleged to have been breached. The District Court, McGohey, J., held that a notice calling for the production of documents containing and relating to contract alleged to have been breached by defendants was sufficient to require production of documents, since court would consider notice as a motion and order the production of documents.
Order in accordance with opinion.
Walter & Walter, Brooklyn, N.Y., for plaintiff.
Stillman & Stillman, New York City, for defendants.
McGOHEY, District Judge.
The plaintiff having brought suit here cannot now complain that he is required to be examined here. But the time of his examination should be fixed so as not to require him to break existing commitments in Mexico. Accordingly, the motion to set aside the notice for his examination here is denied. But the examination will not be held until the second week of December, 1950. Furthermore, it will be held at the United States Court House in this district unless the parties agree on some other place. The motion to require defendants to defray plaintiff's expenses is denied.
The notice calls for production of documents containing and relating to the contract alleged to have been breached by the defendants. Plaintiff urges that production cannot be required by notice under the rules, but only by order on a motion under Fed.Rules Civ.Proc. rule 34, 28 U.S.C.A.
The notice is sufficient to require production. Smith v. Bentley, D.C.S.D.N.Y., 9 F.R.D. 489, 490. The documents are clearly relevant and material, and there is obviously good cause for their inspection and discovery. Accordingly, as Judge Koscinski did in Society of Independent Motion Picture Producers v. United Detroit Theatres Corporation, D.C.E.D. Mich., 8 F.R.D. 453. I will consider the notice as a motion under Rule 34 and order the production, examination and inspection of the documents specified in the notice.
Submit order.