Opinion
Action by Anthony Czuprynski against the Shenango Furnace Company. On plaintiff's motion for order requiring testimony of employee of defendant to be taken by deposition on oral examination and requiring the employee to attend and be examined and to require defendant to give notice of arrival of vessel at port and to compel attendance of witness.
Motion denied.
Desmond & Drury, of Buffalo, N.Y., for plaintiff.
Duncan, Leckie, McCreary, Schlitz & Hinslea, of Cleveland, Ohio, and Stanley & Otten, of Buffalo, N.Y. (Arthur E. Otten, of Buffalo, N.Y., of counsel), for defendant.
KNIGHT, District Judge.
This is a motion for an order requiring the testimony of an employee of the defendant to be taken by deposition upon oral examination; requiring such employee to attend and be examined ‘ at a time when said vessel (defendant's) arrives at the port of Buffalo during the course of the navigation season; and for a further order requiring defendant herein to give due notice of such arrival and to compel the attendance of such witness.’
It seems quite obvious that this court has no authority to grant this order. First: The defendant can not be required to produce its employee as a witness. Second: Rule 26 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, states when deposition may be taken and Rule 30, the circumstances under which such deposition may be taken. These provisions are not met. Further, it is incumbent upon the plaintiff herein to procure the attendance of a witness for examination, and such attendance may be compelled as provided by Rule 45 of the Rules of Civil Procedure. Issue has been joined, and application to the Court is not necessary. There is no authority to require the witness' attendance save through subpoena.
Motion denied.