Opinion
Action by Leon S. Brach, suing in his own behalf and in behalf and for the benefit of all other stockholders of MacFadden Publications, Inc., similarly situated, against MacFadden Publications, Inc., and another. On motion by plaintiff for leave to take the depositions of parties and witnesses and for an order for the issuance of subpoenas and the production and copying of documents.
Motion denied.
Krause, Hirsch & Levin, of New York City, for plaintiff.
Hays, St. John, Abramson & Schulman, of New York City, for defendant MacFadden Publications, Inc.
Edwin Foster Blair, of New York City, for defendant Bernarr MacFadden.
MANDELBAUM, District Judge.
The plaintiff moves for leave to take the depositions of parties and witnesses, an order for the issuance of subpoenas and the production and copying of documents. Rule 26(a), Rule 45, Rule 45(d) and Rule 34, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c.
The defendants object to the procedure adopted by the plaintiff. Ordinarily I would be inclined to overlook technical objections to procedure. However, in the instant case, I feel that the points raised by the defendants are will taken. The new federal rules provide a clear and unambiguous method of taking depositions, compelling the attendance of parties and witnesses and the production and copying of documents. The plaintiff contends that by this omnibus motion, he will save the time and the effort of the court. After careful consideration, I think that what the plaintiff is attempting to do would result in confusion rather than assistance.
Issue has been joined in this case and Rule 26(a) explicitly states that a deposition shall be taken without leave. The rule further states that the deposition shall be taken only in accordance with these rules. It seems as if the plaintiff is proceeding in a roundabout way. Judge Hulbert has clearly outlined the procedure to be followed ( Lyons v. Bronx Towing Line, Inc., D.C., 1 F.R.D. 52; Nekrasoff v. United States Rubber Co., D.C., 27 F.Supp. 953), and I agree with him.
Orderly procedure under the rules and the cases forces me to the conclusion that this motion be denied. Proceed accordingly.