Opinion
No. 44.
July 17, 1939.
Ferris, Burgess, Hughes Dorrance, of Utica, N.Y., for plaintiff.
Mandeville, Waxman, Buck, Teeter Harpending, of Elmira, N.Y., for defendants.
Plaintiff makes three motions, to wit: (1) For leave to take depositions upon oral examination; (2) for discovery and production of documents; and (3) for the issuance of subpœnas for the production of documentary evidence on the taking of depositions.
The motion for leave to take the testimony of the defendants in the respect sought is granted, except that the testimony sought to be elicited in Nos. (1), (8) and (22) of the motion is disallowed and except that No. (18) is to be limited to the period between November, 1929, and May, 1938.
The motion for discovery is made under Rule 34 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Except as to the documents referred to in Nos. (1) and (2) of the moving papers, there is no sufficiently explicit designation of the documents and papers intended nor is there any sufficient showing that such documents and papers are in the possession of the individuals to whom the motion relates. With the exceptions noted, the motion seems to partake much of the nature of a "fishing expedition." This was not the intent of the rule. This is said with the realization that the rule is to be construed broadly with the purpose that proper evidentiary matters may be brought out. It seems to me the better practice in the instant case is to defer action on the motions for discovery and issuance of subpœnas until the depositions shall have been taken, and thereafter, if desired, the motions for discovery and issuance of subpœnas may be considered upon the present and supplemental proofs. This procedure will be followed.
What has been said with reference to the motion for discovery is equally applicable to the motion for issuance of subpœnas.