132 F. 304 | U.S. Circuit Court for the District of Western New York | 1904
It appears by the moving affidavits that the books and papers in the possession of the defendants show facts which the plaintiff must establish upon the trial to maintain its action. There apparently is no other way in which the plaintiff is enabled to substantiate the allegations of the complaint. Judge Townsend, in Kirkpatrick v. Pope Manufacturing Co. (C. C.) 61 Fed. 46, holds that the rule in such cases is that “a complainant would be entitled to a discovery as to such matters of fact as are material to the prosecution of the whole of his case.” Judge Lacombe, in Gray v. Schneider (C. C.) 119 Fed. 474, approved the decision in Bloede Co. v. Bancroft & Sons Co. (C. C.) reported in 98 Fed. 175. There it is held that section 724 •of the Revised Statutes [U. S. Comp. St. 1901, p. 583] confers authority on federal courts in actions at law,to require, on a proper showing, the production of the books and writings of the adverse party, so that the cause may be prepared for trial, or that they be produced at the trial in order to make their contents known; and" he directed that the order provide for the attendance of some representative of the opposing party while the examination was being conducted. The plaintiff’s application is within the rule of the Bloede Case. An order may be entered, requiring the defendant to produce and exhibit to the plaintiff the books or writings which make the disclosures mentioned in the petition. The order, to be first approved by the defendants, shall state when and where the plaintiff intends to examine and inspect the books and make abstracts. Copies of abstracts shall be delivered to defendants or their counsel. Unless counsel agree as to form of order, the same will be settled by the court.
