Opinion
No. 3731.
Decided May 4, 1948.
When the taking of depositions by the plaintiff and the defendant may involve a conflict, the time and place at which each may be taken is within the discretion of the Trial Court in accordance with the requirements of justice.
PETITION, by the plaintiff requesting the court to postpone the taking of the plaintiff's deposition to a later date, to be fixed by the court. The court granted the petition and ordered that the plaintiff's deposition be taken at Exeter immediately following the taking of the defendant's deposition there. To this order the defendant seasonably excepted.
It appears that after the bringing of suit on November 17, 1947, the plaintiff on the same day served notice on the defendant that one or more depositions would be taken at the office of the plaintiff's attorney in Exeter on Saturday, November 22, 1947, at ten o'clock in the morning. On November 18, the defendant served notice on the plaintiff that one or more depositions, including the plaintiff's, would be taken in Dover at the office of the defendant's attorney at nine o'clock on the morning of November 22. Later the defendant offered to take these depositions at Exeter at the same time and date. Further facts appear in the opinion. Transferred by Wescott, J.
William H. Sleeper and Robert Shaw (Mr. Shaw orally), for the plaintiff.
Hughes Burns (Mr. Donald R. Bryant orally), for the defendant.
The time required to take a party's deposition is not always limited to an hour, and often a substantially longer time is necessary. If the defendant were to take one or more depositions at nine o'clock in the morning, the plaintiff might be deprived of the opportunity to take his depositions at ten o'clock on the same morning. This is true whether the defendant's depositions were to be taken in Dover at his office, as his notice stated, or at Exeter as he later offered to do. If the practice advocated by the defendant should prevail, there would be nothing to prevent either party, within the time limited by Superior Court Rule 29 (93 N.H. Appendix) from harassing the other by notices for successively earlier depositions, to the derogation of justice and common sense. The law countenances no such conduct. Our statutes relative to the taking of depositions (R.L., c. 393) are silent as to which party shall have preference in such instances as the present, and therefore the familiar rule applicable is that each case must be decided within the discretion of the Trial Judge in accordance with the requirements of justice. LaCoss v. Lebanon, 78 N.H. 413, 417, and cases cited; Morrill v. Bank, 90 N.H. 358; Carr v. Adams, 70 N.H. 622; Deming v. Foster, 42 N.H. 165, 178, 179; Scammon v. Scammon, 33 N.H. 52, 60.
There being no abuse of discretion here the order is
Exceptions overruled.