16 F.R.D. 395 | S.D.N.Y. | 1954
A motion and cross-motion relating to discovery proceedings grow out of three separate actions, not consolidated, brought by different plaintiffs against, in each case, four groups of defendants. The actions seek a recission of purchases made by the plaintiffs of revenue bonds of the Bellevue Bridge Commission (Nebraska) on the ground of material misrepresentations. The defendant Parsons, Brinekerhoff, Hall & MacDonald has moved to postpone the examination of itself noticed by the plaintiffs until the examinations, presently being conducted by the defendant Shields upon the
It is the general rule that the court will grant priority to whichever party serves his notice for deposition first, and the plaintiffs have gained first service upon the defendant Parsons. But the rule of priority is not an inflexible one and the circumstances here presented justify some departure. While the three cases are separate and unconsolidated, they arise out of substantially the same, if not the identical facts, and they comprise an integrated controversy. On Shields’ examination of plaintiffs, all parties to the case received notice under Rule 30(a) and under Rule 26(d) any party may use the depositions taken. Thus, for all practical purposes the defendant Parsons may avail itself of the examinations noticed by the co-defendant Shields. The plaintiffs express concern that an application of this principle may serve to frustrate their discovery by indefinite postponement until after the completion of all of Shields’ noticed examinations. However, no showing of prejudice has been made. Indeed, it is asserted that plaintiffs cannot properly prepare for the examination of Parsons without access to certain documentary materials which they have moved to produce. But the decision granting the postponement of Parsons’ examination will be without prejudice to a modification of the order should the postponement occasion undue delay to the prejudice of the plaintiffs.
The delay to which the plaintiffs do ascribe prejudicial effect is in the production of the documents they seek, and which they must have in order to prepare not only for the Parsons examination but for other depositions to be taken in the Middle West. There is no issue of the relevancy of these materials and good cause has been shown. They are unquestionably entitled to production under Rule 34, and the temporary unavailability of a member of the defendant Parsons’ firm who is asserted to be the only one familiar with the documents can be no bar to their production. The materials as described alternatively under either (a) or (b) of the plaintiffs’ motion will be produced, at the defendant’s option.
Settle an order accordingly.