234 F. 194 | D. Del. | 1916
The Union Sulphur Company, a corporation of New Jersey, brought its bill in this case against the Free-port Texas Company, a corporation of Delaware, and the Freeport Sul-phur Company, a corporation of Texas, hereinafter referred to as the Texas corporation. No service of process having been made upon the Texas corporation and it not voluntarily appearing, the only defendant in court is the Delaware corporation. The plaintiff has hied under rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv), of the equity rules promulgated by the Supreme Court interrogatories to be answered by Eric P. Swenson, who is the defendant’s president, or by such other officer of the defendant as has knowledge of the facts inquired about; one class of interrogatories being directed to the question of such control by the defendant over the Texas corporation, or such combination or co-operation between the two, as to render the defendant liable for the acts of the Texas corporation, and the other class of inter
“Referring to the interrogatories directed to the issue of infringement, I say-as follows:
“Í am a banker, and my connection with these matters has been that of a financier and executive officer. X have had no technical training. I have no knowledge or information, either personally, or as president of the defendant corporation, which will enable me to answer the said interrogatories, and I am not competent or qualified to answer the same. Furthermore, I have made an investigation to ascertain whether the facts inquired about in these interrogatories are known to any officer, or to any employs, of the defendant Freeport Texas Company, which is a holding company and not an operating company, and to the best of my knowledge, information and belief, there is no officer or employs or any one under the control of said company who is competent or qualified to answer any of these interrogatories, and there is no writing, record or drawing in the file of the said defendant company giving information on which the said interrogatories might be answered. The defendant company, its officers and employSs, are, therefore, unable to answer any of the said interrogatories.”
The plaintiff, not being content with the above statement, has moved that Swenson be ordered to file — •
“further full and fair answers to each and all of the interrogatories directed to the issue of infringement, and further, that if he have not sufficient personal knowledge or information to give such full and fair answers, that he be directed, before answering, to make such further inquiry concerning the facts inquired about as to the court shall appear just and proper under the circumstances.”
As it appears from Swenson’s statement that he has not sufficient personal knowledge or information to give such full and fair answers, and, further, that such knowledge or information is not possessed by any other officer or employé of the defendant, the question is presented whether Swenson should be directed, with a view to making further answer, to make inquiry of persons other than officers or employes of the defendant, touching the facts inquired about. It is urged by counsel for the plaintiff that for the purpose of the present application it must be assumed that the Texas corporation is under the control of the defendant, and should be treated as its agent, and that Swenson, therefore, is under an obligation to ascertain the facts bearing upon the alleged infringement from the officers or employes of the Texas corporation. On the above assumption of control and agency, however, of whom shall Swenson make inquiry? Certainly this court has no means of indicating the person or persons capable of imparting to him the desired information. The officers of the defendant and of the Texas corporation, namely, the president, vice president, treasurer and secretary, are and for a number of years have been the same; and knowledge or lack of knowledge on the part of such officers of the defendant would equally he knowledge or lack of knowledge on the part of such officers of the Texas corporation. The apparatus em
“Any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit.”
The purpose of the rule is not to deprive the parties or either of them of the right at the trial to adduce evidence of “facts and documents material to the support or defense of the cause,” but to enable the parties or either of them in proper cases to obtain evidence, prior to the trial, of such facts and documents, and thus render unnecessary the production of such evidence at the trial. The rule is intended to facilitate the proper disposition of the cause, and not to needlessly harass and vex parties or those representing them, or either of them. Hence, as heretofore held by this court in this case, the application of the rule involves the exercise of sound discretion by the court, which, while not withholding from the party filing the interrogatories the benefit of the disclosure to which he is entitled, should observe proper care that the party interrogated shall not he unduly and unnecessarily burdened, oppressed or harassed. And equally, the party or person interrogated should not be required in order to make answer to incur great and unreasonable expense and trouble, which could be obviated by the taking of evidence by deposition or by the production of proof at the trial.
The course of judicial decision up to the present time touching the scope and effect of the rule has not been such as to throw much light upon the subject. The reported cases, both under rule 58 and under order XXXI of the English rules, leave much to he desired in the way of consistency and perspicuity. While rule 58 contemplates “discovery” of material facts and documents that term evidently is not employed in its technical sense. The effect of an answer to interrogatories