233 F. 470 | E.D. Pa. | 1916
Interrogatories were filed by plaintiff under equity rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv). They number 21. Answers have been filed to those numbered consecutively 1 to 12, both inclusive, and the remaining ones are left unanswered, pending disposition of objections made to them.
It is to be further observed that the answer, as under rule 30 (198 Fed. xxvi, 115 C. C. A. xxvi) it might, does not admit, deny, or explain the .averred fact of publication. Exceptions to answers being abolished by rule 33 (198 Fed. xxvii, 115 C. C. A. xxvii) plaintiff can require an answer only through the means evoked. None of the objections applies unless it be those designated as (b), (d), and (h). We do not think the suggestion of immateriality or that proof at the trial would be untimely to be well founded. Notice was given the defendant to desist from the averred infringement. The charge is that the defendant answered this demand by thei (publication. In an injunction bill we cannot find the fact averred to be either immaterial or its proof premature. The fact not now being found to be immaterial or an anticipation, the ascription of improper motives in seeking to elicit it cannot be regarded. The plaintiff may now, as at the trial, admit the fact without admitting materiality. All, however, to which the plaintiff is entitled is an admission of the fact if it be the fact of authorship' and publication. It cannot, through interrogatories, as it could not, through testimony, introduce secondary evidence without first laying ground. The lines asked to be drawn in this respect and also in respect to the innuendo features are extremely fine. They must, however, be respected, if there is insistence upon them, to this extent. The plaintiff has the right to interrogate the defendant in order to identify the author and publisher and to require an answer. The same candor and frankness and disposition to save the time of the court, which counsel would be expected to show at the trial, is not out of place in answers to interrogatories. The object which rule 58 has in view is to bring down every case to its controverted points. If the fact of the publication and to whom it referred would not be denied after the plaintiff had offered evidence on the subject the court should be relieved now of the necessity of going into the evidence. The defendant can protect itself in all its rights by limiting its answers so that they may be used only for the purposes of this case.
The disposition now made of the case is that, unless the defendant withdraws its objections to all the interrogatories by answering to such as it is herein indicated'it is proper for it to make answer, plaintiff is granted leave to amend the interrogatories filed by reframing them in accordance herewith.
The defendant is required to answer over to the interrogatories indicated.
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