Opinion
Actions against airline company and the United States, wherein defendant airline company served notices of deposition and plaintiff moved to vacate such notices. The District Court for the Southern District of New York, Sugarman, J., held that notices of deposition would not be vacated on ground that they were served on eve of trial for dealy only, where papers showed that matters sought to be explored were only recently brought to defendant's attention.
Motion denied.
Powers Kaplan & Berger, New York City, for plaintiff. David A. Ticktin, New York City, of counsel.
Bigham, Englar, Jones & Houston, New York City, for defendant Eastern Air Lines, Inc. P. G. Pennoyer, Jr., New York City, of counsel.
SUGARMAN, District Judge.
Plaintiff moves to vacate two notices of deposition served by defendant Eastern Air Lines, Inc.
In brief, the plaintiff claims that the proposed pretrial examinations of the Sun Ray Park Health Resort and Dr. Donald E. Fortner is ‘ in violation of the right of preservation of a confidential communication between patient and doctor and the hospital.’
Inasmuch as the subject matter of the proposed depositions is undisclosed except that defendant seeks to learn if ‘ deceased had, in the year of his death and for some time before, been an alcoholic, had been treated for chronic alcoholism, and had been admitted to the Sun Ray Park Sanitarium,’ what merit there is in these contentions should be decided at the examination where it will first appear whether the examination touches upon information within the asserted privilege, not in advance thereof.
Feldmann v. Connecticut Mut. Life Ins. Co., D.C.E.D.Mo.1944, 57 F.Supp. 70.
4 Moore's Fed.Prac. (2d ed.) par. 30.09, p. 2031; Continental Distilling Corp. v. Humphrey, D.C.1955, 17 F.R.D. 237.
The court finds no merit in plaintiff's further contention that the notices are served on the eve of trial and are therefore served only for delay. The papers on this motion show that the matters defendant Eastern Air Lines, Inc. seeks to explore on these depositions were only recently brought to its attention.
Plaintiff further claims that the notice of examination of Philip Stoller should be vacated because he has already given a deposition in these actions. This does not per se entitle plaintiff to vacatur of the notice.
It appears that defendant Eastern Air Lines, Inc. intends to question Mr. Stoller, a former employer of the decedent, regarding the latter's alleged alcoholism, a subject previously unhinted at in the case and not the subject of Mr. Stoller's cross-examination by defendant when plaintiff took his deposition.
Since the basis for defendant's suspicions was only recently disclosed to it, and the importance of this inquiry being obvious, there is no reason why the defendant Eastern Air Lines, Inc. should not take the depositions sought by its notices.
Settle an order.