Levinstein v. E. I. Du Pont de Nemours & Co.

258 F. 991, 1919 U.S. Dist. LEXIS 1203

Opinion

MORTON, District Judge.

At the conclusion of the arguments I gave judgment orally, in substance as follows: The usual was of taking testimony after a case is at issue is under section 863 of the Revised Statutes (Comp. St. § 1472). Section 866 (Comp. St. § 1477) is not to be resorted to unless it is “necessary” to do so in order to prevent “a failure or delay of justice.” The affidavits submitted do not satisfy me that the evidence which the plaintiff desires cannot be obtained in the usual way, and I am therefore unable to find that the necessity required by section 866 exists. At tbo same time 1 am not insensible to the carefully guarded statements of defendant’s counsel as to the presence of witnesses and the production of books at the trial. He has reserved entire liberty of action in that respect. The plaintiff is plainly entitled to the assistance of the court in obtaining the evidence which he seeks, and X shall be disposed to use the full power of the court, as circumstances may require, to secure to him his rights. It may conceivably be to his advantage to have the present dedimus outstanding, so that its authority can be readily invoked. I therefore shall not recall it; but action under it is to be suspended until further order. If there is further disagreement about the specifications, parties may apply to me to fix the time for filing.