Michels v. Ripley

| S.D.N.Y. | Feb 8, 1939

HULBERT, District Judge.

This motion is for an order appointing a special master before whom the oral examination of the defendant shall be had pursuant to notice to take his deposition under Rule 26, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, instead of the notary public therein designated who, since the service of such notice, has become affiliated with the attorney for the plaintiff, and, in fact, appeared as counsel on the argument hereof; and”, further to limit the scope of said examination.

The just, speedy, and inexpensive determination of every action is the declared purpose of the new Federal Rules of Civil Procedure. (Rule 1.)

Unless limited by Rule 30(b) or (d) the defendant may be examined regarding any matter, not privileged, which is relevant to the subject matter involved. (Rule 26(b).

While it was stated on the argument that plaintiff’s attorney had estimated the proposed examination would require 8 or 9 days, the court will not assume, in the absence of proof, that the examination is sought in bad faith or will be conducted with any intention to annoy, embarrass or oppress the defendant. The motion is therefore denied without prejudice. The order to be entered shall be settled on two ■days’ notice and shall direct the defendant to appear for examination upon a day to be agreed upon between counsel at 10 ■o’clock A. M., such examination to continue from day to day until completed, at the time and place and before a qualified person to be designated by the court. Let the order contain the requisite blank spaces for such particulars to be filled in when presented for settlement and signature. A competent stenographer must be provided by the plaintiff and the deposition when ■completed, signed and sworn to by the defendant, unless that be waived in writing, shall be forthwith filed with the Clerk of •this Court. At any time during the examination, upon the demand of either party, the taking of the deposition may be suspended to permit an application to the court pursuant to Rule 30.