Opinion
Nos. 1617, 1841.
August 18, 1941.
Louis Winer, of New York City, for plaintiffs.
Evans Rees, of New York City, for defendants.
Actions by Arthur Colpak and others, suing jointly and individually as children of Anna Colpak, deceased, and others against Charles F. Hetterick and Clifford J. Hoblin and by Frieda Sieve against Charles F. Hetterick and Clifford J. Hoblin. On motion for an order directing defendants and others to appear before a designated notary public to submit to oral examination and taking of testimony for the purpose of discovery and for use as evidence in such actions, and to require the production of certain documents, letters and written statements and reports.
Order in accordance with opinion.
This is a motion for an order directing the defendants, Charles F. Hetterick and Clifford J. Hoblin, Mrs. Charles Hetterick, wife of the defendant Charles F. Hetterick, and London Lancashire Insurance Company by its chief claim agent, to appear before W. Kenneth Chave, attorney at law and notary public at his office at 100 Washington Avenue, Cedarhurst, Long Island, within said Eastern District of New York, at a time to be appointed by this Court at which time said parties and persons shall submit to oral examination and taking of testimony for the purpose of discovery and for use as evidence in these actions, and said parties and persons shall be required to produce and permit the inspection, copying and photographing by or on behalf of the plaintiffs herein of any documents, papers, letters, written statements or reports or photographs, not privileged, which constitute or contain evidence material to any matter involved in this action, which are in their possession, custody or control.
No objection is offered to, and the motion is consented to, as to all parties and persons, but the London Lancashire Insurance Company and its chief claim agent as to which the motion is opposed.
The investigation appears to have been made by the Company itself, and not by its attorney for the purpose of preparing for trial, therefore, it is not privileged. Bough v. Lee et al., D.C., 28 F. Supp. 673; Kulich v. Murray, D.C., 28 F. Supp. 675, nor would that be changed had the insurance company later turned over to an attorney the results of that investigation.
Neither the corporation nor its chief claim agent, whom it is sought to examine, saw the accident, nor are they in possession of facts of which they had knowledge relating thereto, and, therefore, most of what the chief claim agent of the Insurance Company could testify to would be hearsay, and he should not be compelled to give hearsay evidence or exhibit the files of the Company as to said cases.
However, any written statements of Charles F. Hetterick, Clifford J. Hoblin and Mrs. Charles F. Hetterick, wife of the defendant Charles F. Hetterick, and of any doctors in possession of the Insurance Company or its agent should be exhibited to the attorney for the plaintiffs and copies thereof given to him and in addition any oral statement made by any or all of the defendants to the said chief claim agent of the Insurance Company personally would be material and relevant as they might with the papers required well contain admissions against interest and would be of value in testing the truth of the testimony of the defendants or any of them on the trial as would also the reports of the doctors if any there were. Price v. Levitt et al., D.C., 29 F. Supp. 164.
The time for taking the depositions is set for September 2nd, 1941, at 11 o'clock A.M. at the office of W. Kenneth Chave, 100 Washington Avenue, Cedarhurst, Long Island, New York, the examination of the Insurance Company by its chief claim agent to be limited as herein provided.
Settle order on notice.