Brach v. Macfadden Publications, Inc.

S.D. New York

Brach v. Macfadden Publications, Inc.

1 F.R.D. 445, 1940 U.S. Dist. LEXIS 1995

CourtDistrict Court, S.D. New York

DecidedSeptember 16, 1940

StatusPublished

Cited by3 cases

This text of 1 F.R.D. 445 (Brach v. Macfadden Publications, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brach v. Macfadden Publications, Inc., 1 F.R.D. 445, 1940 U.S. Dist. LEXIS 1995 (S.D.N.Y. 1940).

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Opinion

MANDELBAUM, District Judge.

The plaintiff moves for leave to take the depositions of parties and witnesses, an order for the issuance of subpoenas and the production and copying of documents. [446]*446Rule 26(a), Rule 45, Rule 45(d) and Rule 34, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c.

The defendants object to the procedure adopted by the plaintiff. Ordinarily I would be inclined to overlook technical objections to procedure. However, in the instant case, I feel that the points raised by the defendants are well taken. The new federal rules provide a clear and unambiguous method of taking depositions, compelling the attendance of parties and witnesses and the production and copying of documents. The plaintiff contends that by this omnibus motion, he will save the time and the effort of the court. After careful consideration, I think that what the plaintiff is attempting to do would result in confusion rather than assistance.

Issue has been joined in this case and Rule 26(a) explicitly states that a deposition shall be taken without leave. The rule further states that the deposition shall be taken only in accordance with these rules. It seems as if the plaintiff is proceeding in a roundabout way. Judge Hulbert has clearly outlined the procedure to be followed (Lyons v. Bronx Towing Line, Inc., D.C., 1 F.R.D. 52; Nekrasoff v. United States Rubber Co., D.C., 27 F.Supp. 953), and I agree with him.

Orderly procedure under the rules and the cases forces me to the conclusion that this motion be denied. Proceed accordingly

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MANDELBAUM, District Judge.

The plaintiff moves for leave to take the depositions of parties and witnesses, an order for the issuance of subpoenas and the production and copying of documents. [446]*446Rule 26(a), Rule 45, Rule 45(d) and Rule 34, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c.

The defendants object to the procedure adopted by the plaintiff. Ordinarily I would be inclined to overlook technical objections to procedure. However, in the instant case, I feel that the points raised by the defendants are well taken. The new federal rules provide a clear and unambiguous method of taking depositions, compelling the attendance of parties and witnesses and the production and copying of documents. The plaintiff contends that by this omnibus motion, he will save the time and the effort of the court. After careful consideration, I think that what the plaintiff is attempting to do would result in confusion rather than assistance.

Issue has been joined in this case and Rule 26(a) explicitly states that a deposition shall be taken without leave. The rule further states that the deposition shall be taken only in accordance with these rules. It seems as if the plaintiff is proceeding in a roundabout way. Judge Hulbert has clearly outlined the procedure to be followed (Lyons v. Bronx Towing Line, Inc., D.C., 1 F.R.D. 52; Nekrasoff v. United States Rubber Co., D.C., 27 F.Supp. 953), and I agree with him.

Orderly procedure under the rules and the cases forces me to the conclusion that this motion be denied. Proceed accordingly

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1 F.R.D. 445, 1940 U.S. Dist. LEXIS 1995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brach-v-macfadden-publications-inc-nysd-1940.

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