Hilgenberg v. Neth

E.D. Tennessee

Hilgenberg v. Neth

93 F.R.D. 325, 34 Fed. R. Serv. 2d 801, 1981 U.S. Dist. LEXIS 17258

CourtDistrict Court, E.D. Tennessee

DecidedMay 18, 1981

DocketNos. CIV-2-80-181, CIV-2-80-182

StatusPublished

This text of 93 F.R.D. 325 (Hilgenberg v. Neth) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hilgenberg v. Neth, 93 F.R.D. 325, 34 Fed. R. Serv. 2d 801, 1981 U.S. Dist. LEXIS 17258 (E.D. Tenn. 1981).

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Opinion

MEMORANDA OPINIONS AND ORDERS

NEESE, District Judge.

In each of these actions, the defendant Mr. Arrowood moved for an order requiring the respective plaintiffs to produce for his inspection and copying certain documents claimed to be within the custody or control of such respective plaintiffs. Rule 34, Federal Rules of Civil Procedure, “* * * provides for production upon request, and not by motion. * * *” Ross v. Longchamps, Inc., D.C.Mo. (1971), 336 F.Supp. 434, 437[2]; see Form 24, Federal Rules of Civil Procedure, Appendix of Forms. Accordingly, the Court declines to consider this aspect of the respective motions until such time as the movant has first requested the respective plaintiffs to produce the documents and is refused. Grissom v. N. L. R. B., D.C.La. (1973), 364 F.Supp. 1151, 1154[4], affirmed C.A. 5th (1974), 497 F.2d 43.

To the extent the aforementioned motions seek orders directing certain non-party corporations to produce the desired documents, each such motion hereby is

DENIED. Rule 34, supra, cannot be used in such manner. Fleming v. Gardner, D.C. Tenn. (1978), 84 F.R.D. 217[1], citing Hickman v. Taylor (1947), 329 U.S. 495, 504, 67 S.Ct. 385, 390, 91 L.Ed. 451, 459. Such discovery must be had, if at all, by a subpoena duces tecum issued pursuant to the provisions of Rule 45(b), Federal Rules of Civil Procedure. See In Re Penn Central Commercial Paper Litigation, D.C.N.Y. (1973), 61 F.R.D. 453, 466.

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MEMORANDA OPINIONS AND ORDERS

NEESE, District Judge.

In each of these actions, the defendant Mr. Arrowood moved for an order requiring the respective plaintiffs to produce for his inspection and copying certain documents claimed to be within the custody or control of such respective plaintiffs. Rule 34, Federal Rules of Civil Procedure, “* * * provides for production upon request, and not by motion. * * *” Ross v. Longchamps, Inc., D.C.Mo. (1971), 336 F.Supp. 434, 437[2]; see Form 24, Federal Rules of Civil Procedure, Appendix of Forms. Accordingly, the Court declines to consider this aspect of the respective motions until such time as the movant has first requested the respective plaintiffs to produce the documents and is refused. Grissom v. N. L. R. B., D.C.La. (1973), 364 F.Supp. 1151, 1154[4], affirmed C.A. 5th (1974), 497 F.2d 43.

To the extent the aforementioned motions seek orders directing certain non-party corporations to produce the desired documents, each such motion hereby is

DENIED. Rule 34, supra, cannot be used in such manner. Fleming v. Gardner, D.C. Tenn. (1978), 84 F.R.D. 217[1], citing Hickman v. Taylor (1947), 329 U.S. 495, 504, 67 S.Ct. 385, 390, 91 L.Ed. 451, 459. Such discovery must be had, if at all, by a subpoena duces tecum issued pursuant to the provisions of Rule 45(b), Federal Rules of Civil Procedure. See In Re Penn Central Commercial Paper Litigation, D.C.N.Y. (1973), 61 F.R.D. 453, 466.

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93 F.R.D. 325, 34 Fed. R. Serv. 2d 801, 1981 U.S. Dist. LEXIS 17258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilgenberg-v-neth-tned-1981.

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