245 F. 783 | D.N.J. | 1917
The plaintiff has instituted two actions against the defendant, one at law and the other in equity. Both are at issue. Its attorneys have given notices to the defendant that they propose, at a time and place in the notices set forth, to take, for use in each action, the testimony of certain witnesses by deposition de bene esse, under section 863 of the Revised Statutes (U. S- Comp. Stat. 1916, § 1472). The defendant moves to vacate the notices.
“No order or other direction of the court is required antecedent to such examination. The right to take it upon notice merely, in the manner prescribed, is given absolutely to the party by act of Congress. If question is to be raised as to the reasonableness of the notice, or as to the regularity of the proceedings, it may be raised by motion to suppress.”
The point in question was not, however, in any way before him for decision. He was merely making some observations on the effect of the statute. It will be noticed that he did not say that the questions regarding the regularity of the proceedings “must” be raised by motion to suppress, but merely that they “may” be so raised. He dealt more particularly with the point that no permission or other authorization of tire court was necessary as a condition precedent to the examination. But that is quite different from holding that the court may not, when called upon in advance of the examination, decide whether the procedure which the party has followed is proper. While Judge Ward
If the practice adopted by Judge Ward were to be followed in all cases, it is apparent that the party to whom the notice is given would be compelled to take a chance that the deposition might not be eventually suppressed. He would be placed, without any fault of his, in the unenviable position of deciding whether he should incur the expense of being represented at the examination, which, if the deposition were later suppressed, would be useless and unnecessary, or whether he should not do so, which, in the event of the regularity of the depositions being sustained, might prove very disastrous to him. It is conceivable, also, that such a practice might readily be used for the purpose of oppression and harassment. While I hesitate to express a different opinion than Judge Ward, I am unable to concur in his reasoning that to hold that the court may, in advance of the taking of the depositions, decide whether the proceedings by which it is proposed to take them are regular or not, “would greatly impair the efficiency of the statute.” It seems to me that the power of the courts to so intervene would have just the opposite result. It would be surely preferable, and more likely to avoid hardship on both parties, if the court, when objection to the regularity of the proceedings is made, were to determine in advance whether any depositions so proposed to be taken could be used upon final hearing or trial, because, in that way, the party giving the notice would avoid the expense incident to the taking of the depositions, if they could not later be used, and escape the possibility that he would be deprived of the testimony on final hearing or trial, and the party to whom the notice is given would, on the one hand, be saved the expense of having counsel attend the examination, in case he did not dare to take the chance that the court would later suppress them, and, on the other hand, would avoid the necessity of his taking any such risk.
Nor do I think that it can be assumed that the courts would permit, by recourse to them, the emergency purposes of the statute to be impaired, as Judge Ward seems to have feared. If the courts have power to suppress depositions which have not been taken in conformity with the law, as it has never been questioned that they have, I fail to see why they have not power, in advance of taking them, to determine whether the procedure or method by which it is proposed to take them complies with the law. The power exercised in each case is identically the same; the difference is only as to the time when the power is exer
The power which the court exercised in that case was no different, therefore, from that which a court might exercise in any case, when it deemed it in the interests of justice to do so. In actions at law, it seems to have been definitely settled by the Supreme Court that the same witness may be examined de bene esse, under section 863, more than once, without the previous sanction of the court. Cornett v. Williams, 20 Wall. 226, 244, 22 L. Ed. 254. While the court in that case was dealing with the thirtieth section of the act of 1789 (1 Stat. 88), the decision is quite as applicable to section 863 of the Revised Statutes, because the former statute, except in some unimportant details, is the same as the latter. As section 863 applies to equity cases, as
The decision in the Victor Talking Machine Co. Case was, on the other hand, to the effect that, if the depositions were not taken within the time limited by rule 47, they would be suppressed, unless previous permission from, the court to take them had been obtained. There is manifestly a broad distinction between the two cases, and, by reason thereof, the two decisions are entirely consistent and harmonious. To have provided by rule that no deposition in equity cases could be taken under section 863, without the previous order of the court could undoubtedly have been to vary the statute. That, of. course, could only be done by legislative enactment. But to simply provide by rule for the purpose of expediting the disposition of cases, that depositions could not be taken under that statute after a certain time, without permission from the court, does not vary the statute in the sense before mentioned; it is a mere regulation of the method of procedure, with which power Congress undoubtedly invested the Supreme Court. The language of rule 47 is that “all depositions taken under a statute * * * shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown.” The rule makes no distinction as to statutes. Hence, irrespective of
There is no limitation in section 863 as to the time when the deposition must be taken, except that the cause must be “depending” at that time. Yet it was held, without dissent so far as I know, that former equity rule 68 (now rule 54 [198 Fed. xxxiii, 115 C. C. A. xxxiii]), which provided that testimony might be taken by deposition “according to the act of Congress,” after a cause is at issue, prevented the taking of such testimony before a case was at issue. Stevens v. Railroad Co. (C. C.) 104 Fed. 934 (C. C. E. D. Mo.); Flower v. MacGinniss, 112 Fed. 377, 50 C. C. A. 291 (C. C. A. 2d Cir.). I can see no difference whatever in principle between these two rules on the point in question. One provided that depositions could not be taken before a 'cause was at issue, although it might be “depending”and the other provides that a deposition shall not be taken after a cause has been at issue a certain number of days, without the court’s permission. Both rules were the exercise of the same power and have the same effect on section 863. I think, therefore, that in the equity cause depositions taken under section 863 more than 60 days after the joinder of issue, without previous authorization from the court, could not be used upon final hearing. The notice on which it is proposed to take them should therefore be vacated.
It follows that the motion in the action at law must be denied, and the one in the equity action granted.
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