Opinion
April 5, 1939.
William L. Standard, of New York City, for plaintiff.
Arthur G. Syran, of New York City, for defendant.
This is a motion by the plaintiff, after issue joined, to have a limited examination of the defendant under Rule 26, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c.
The Rules of Federal Practice have the same effect as a statute and are as binding upon the court as upon counsel.
Failure to proceed in accordance with the Rules does not make for simplicity or uniformity in procedure. Plaintiff may, upon service of a simple notice, require his adversary to appear for examination upon any material issue not privileged. There is nothing in the Rule which proscribes a designation of specific issues if the party seeking the examination so chooses to limit himself. Neither is there any provision in the Rule which authorizes the party seeking the examination to have it limited by the court in anticipation of a motion by his opponent under Rule 30(b). This Rule inures to the benefit of the latter only.
The applicant also seeks a discovery and inspection under Rule 34, and the requested relief is so interwoven and so indefinitely phrased that its purpose is confusing.
The motion will be denied, without prejudice, in order that action may be taken in accordance with the Rules as adopted by the United States Supreme Court and not as counsel has done in apparent disregard thereof.