Opinion
Action by Samuel O. Blanc against George Smith, doing business under the name and style of Smith Sewer Service. On defendant's objections to interrogatories propounded by plaintiff.
Objections sustained in part and overruled in part.
Gordon F. Hook, of Wilkinson, Huxley, Byron & Knight, of Chicago, Ill., and Stephen
& Buckingham, of Des Moines, Iowa, for petitioner.
F. Creed Corey, of Des Moines, Iowa, for defendant.
DEWEY, District Judge.
The above entitled action came on for hearing in open court at Des Moines, Iowa, on the 2nd day of January, 1943, on objections filed by the defendant to interrogatories propounded to him by the plaintiff.
The objections to the interrogatories are, in effect: 1st, that they ask for an opinion on the construction of claims of the patent in suit; 2nd, that they call for legal conclusions; and 3d, that the requests for information regarding the construction of a device with certain elements do not call for elements covered by plaintiff's claims and are therefore immaterial.
The request for the interrogatories was made under the provisions of Rule 33 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Upon careful examination I find that Interrogatories Nos. 1, 2, 4, 5, 7, 8, 10 and 11 ask for fact questions as distinguished from opinions or constructions of claims, and these objections are therefore overruled.
Interrogatories Nos. 3, 6, 9 and 12 are not requests for the answers of any fact, but request affirmative action on the part of the defendant which does not seem to be within the purview of said Rule No. 33, and the objections to these interrogatories are sustained.
Interrogatories Nos. 13, 14, 15, 16, 17, 18, 19 and 20 call for information which involves the giving of opinions as distinguished from facts and the objections to each of said interrogatories should be sustained.
The objection to the interrogatories on the ground that they do not contain the elements of the claims of plaintiff's patent will have to be overruled as no copy of the patent is before the court and the burden is upon the party filing the objections to sustain his reasons why the interrogatories should not be answered. Defendant is therefore given 10 days to answer the interrogatories to which the objections have not by this ruling been sustained.
The Clerk will therefore enter the following order:
The above entitled action having come on for hearing in open court on objections filed by the defendant to certain interrogatories propounded by the plaintiff to him and the same being submitted;
It is ordered that such objections be sustained as to Interrogatories 3, 6, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20; and overruled as to Interrogatories Nos. 1, 2, 4, 5, 7, 8, 10 and 11.
The defendant is given 10 days to answer the interrogatories to which the objections have not been sustained. Both parties except.