Opinion
Action by Raymond E. Beegle, doing business as Beegle Tie Service Company, against Charles M. Thomson, as trustee for Chicago & North Western Railway Company and Sharon Steel Corporation. On plaintiff's motion for a subpoena duces tecum under rule 45(d)(1) of the Rules of Civil Procedure.
Motion denied.
Wilfred S. Stone (of Spencer, Marzall Johnston & Cook), of Chicago, Ill., for plaintiff.
Davis, Lindsey, Smith & Shonts, of Chicago, Ill., for defendant.
CAMPBELL, District Judge.
The plaintiff seeks under Rule 45(d)(1) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, by subpoena to photograph or otherwise copy certain ‘ compounds' filed by one of the defendants or its predecessor with the Secretary of Revenue for the Commonwealth of Pennsylvania.
It seems clear from a reading of Rule 45 and of the various cases which have interpreted that Rule, including the case cited by the plaintiff in its brief ( Eastern States Petroleum Co. v. Asiatic Petroleum Corp., D.C., 27 F.Supp. 121) that the subpoena authorized under Rule 45 commanding the production of documents can only be issued in connection with the taking of a deposition. Rule 34 deals with discovery and inspection independently of deposition, but, of course, applies only to documents in the control or possession of a party to the suit.
It would seem, therefore, that the only method by which the documents sought by the plaintiff in this case may be reached for inspection would be in connection with the taking of the deposition of the party who has such documents in his custody.
Nor do I share the view expressed in the reply brief of the plaintiff that ‘ there is absolutely no point to taking the deposition of a clerk of the offices of the Secretary of Revenue’ ; or that, ‘ such a step would be merely loading the record.’ Much information could be given by the Secretary of Revenue or by one of his Assistants, on examination and cross-examination in the taking of a deposition, as to when, how and under what regulations and statutes these compounds were filed. Such information would be of value in passing upon the admissibility into evidence of such documents should the plaintiff find it to his advantage to attempt to introduce them at the time of trial.
The plaintiff's motion for a subpoena duces tecum under Rule 45(d)(1) is denied.