Defendants move pursuant to Rules 26 and 37, F.R:C.P., 28 U.S.C. for an order directing plaintiffs Moore and Whitcup to answer certain questions which they refused to answer upon the taking of their depositions and for the production and inspection of documents which plaintiff Whitcup used to refresh his recollection on the taking of his deposition. Plaintiffs cross-move pursuant to Rules 26 and 30, F.R.C.P., for an order terminating the examinations of plaintiffs Whit-cup and Moore or, in the alternative, limiting the scope of their examinations; and an order limiting the scope of the future examination of the remaining plaintiffs. Plaintiffs also move for an order modifying the subpoena duces tecum which has been issued against plaintiff Kramer.
First, I turn to the examination of plaintiffs Moore and Whitcup and the documents sought in connection with it.
Plaintiffs in this action are thirty songwriters who are suing individually in their own behalf and on behalf of about 3,000 others similarly situated. The Songwriters of America, an association of about 700 songwriters, was organized for the prosecution of this suit. Both plaintiffs Whitcup and Moore refused to answer any questions relating to the Songwriters of America on the ground that defendants are improperly attempting to seek disclosure of plaintiffs’ preparation of their lawsuit. To support their position, plaintiffs invoke the doctrine of Hickman v. Taylor,
The same reasoning applies to the questions about conversations between plaintiff Moore and officials of ASCAP except as to confidential conversations with Mr. Finklestein, general counsel for ASCAP. ASCAP is an unincorporated association of which plaintiff Moore is a member. Each individual member of the association is a client of the association’s lawyer. If, therefore, the conversation was one in which plaintiff Moore was seeking Mr. Finklestein’s
Next I turn to the documents which plaintiff Whitcup used to refresh his recollection on the taking of his deposition but refused to allow defendants’ counsel to inspect. Defendants argue that the mere fact that plaintiff Whitcup used these documents to refresh his recollection entitles them to full discovery without any further showing of the “good cause” required by Rule 34. At trial, opposing counsel is entitled to inspect any writing used by a witness to refresh his recollection for use on cross-examination. See III Wigmore on Evidence (3d ed.) § 762. I do not find any reason for applying a different rule to pre-trial proceedings. Nor do I find any reason for granting the much broader right which defendants seek. Defendants are entitled to inspect the documents used by plaintiff Whitcup to refresh his recollection for the purpose of cross-examining him. For fuller discovery of these documents, they must utilize the normal discovery procedure of presenting affidavits showing “good cause”. See Rule 34 F.R.C.P.
Next I turn to plaintiffs’ cross-motion under Rules 30(b) and (d), F.R. C.P., to limit or terminate the examinations of plaintiffs Whitcup and Moore, and to limit in advance the pre-trial examinations of the remaining plaintiffs. Rule 30(d) provides for termination of examination or limitation of the scope and manner of the taking of the deposition “upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent”. While federal courts are thus authorized to prevent improper use of our liberal pre-trial examination procedures, this power has been and should be exercised sparingly lest it cripple the broad discovery intended by the Federal Rules. See Laverett v. Continental Briar Pipe Co., D.C.E.D.N.Y.,
Finally, I turn to plaintiffs’ motion to modify the subpoena duces tecum which has been served on plaintiff Kramer. Although Rule 45 does not in terms require a showing of good cause for the issuance of a subpoena duces tecum, that requirement of Rule 34 has been read into all procedures for obtaining discovery of documents. See Sagorsky v. Malyon, D.C.S.D.N.Y.,
Defendants have submitted no affidavits in support of items 5, 6, 7, 8. On items 3, 4, 9 and 10, they ask that their affidavits in support of inquiry into Songwriters of America on oral deposition be considered for this purpose. The subject matter of items 3, 4, 9 and 10 is the same as that of the information sought which I have already held relevant for the purposes of pre-trial examination. Therefore, the motion to modify the subpoena duces tecum is denied as to items 3, 4, 9 and 10, and granted as to items 5, 6, 7 and 8 without prejudice to an application under Rule 34 showing “good cause.”
Settle order on notice.