In considering Kendrick's arguments and refusing to suppress the deposition, Chief District Judge Charles M. Allen was of the opinion that the purpose of this sentence in Rule 30(a) was to prevent unnecessary disruption of the administration of the penal institution itself. The only case found by Judge Allen pertaining to this particular provision was Underwood v. Maloney, 15 F.R.D. 104 (N.D.N.Y. 1954). He believed Underwood supported his interpretation of Rule 30(a), although he acknowledged the case involved a different legal issue.
In doing so, however, the court certainly considered that the district court had acted within its jurisdiction. In Underwood v. Maloney, 15 F.R.D. 104 (N.D.N.Y. 1954), the district court in the district where a party to civil litigation was incarcerated was reluctant to allow the taking of the prisoner's deposition under Fed.R.Civ.P. 26(a). The court was reluctant because Professor Moore in his treatise stated that the court has the same power to compel the attendance at a deposition as it has to compel attendance at trial and because Moore further uses In re Thaw as authority for the proposition that a federal court can compel a state to bring a prisoner before it.
Rule 45(d) is specifically made subject to Rule 45(b) when subpoenas duces tecum are involved and there is no limitation in Rule 45(b) as to which Court may grant this relief. Cf. Shawmut, Inc. v. American Viscose Corp., D.C., 11 F.R.D. 562; Underwood v. Maloney, D.C., 15 F.R.D. 104. The District Court in Florida expressly recognized the authority of this Court and in effect directed that motions to quash be made returnable here.
Judgment accordingly. See also 15 F.R.D. 104. Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiffs.