Opinion
Action by Charles W. Fowkes and others against the Dravo Corporation to recover overtime compensation allegedly due under the Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. On motion by defendant for an order compelling certain of the plaintiffs to answer questions propounded to them by counsel for defendant during taking of depositions prior to trial.
Motion granted as to question No. 2; motion denied as to question No. 1.
See also 5 F.R.D. 51.
Sydney C. Orlofsky, for Francis W. Sullivan, both of Philadelphia, Pa., for plaintiffs.
Henry Temin, of Philadelphia, Pa., and J. Roland Johnston, of Thorp, Bostwick, Reed & Armstrong, of Pittsburgh, Pa., for defendant.
BARD, District Judge.
The defendant has filed a motion under Rule 37(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for an order compelling certain of the plaintiffs to answer two questions propounded to them by counsel for the defendant during the taking of depositions prior to trial.
This is an action to recover overtime compensation allegedly due the plaintiffs under the provisions of the Fair Labor Standards Act of 1938. The plaintiffs are now, or were formerly, employed by the defendant. The questions propounded to the plaintiffs, which are the subject matter of the present motion, are as follows:
Act of June 25, 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq.
1. ‘ Are you presently employed?’ (If the answer is in the affirmative, the question (1a), ‘ By whom are you employed?’ ). 2. ‘ Have you at any time since leaving the employ of Dravo Corporation made any written application for employment to any employer or prospective employer, wherein you described in any manner or degree you duties as a salaried employee of Dravo Corporation?’ (If the answer is in the affirmative, the question (2b), ‘ Name such employer or employers').
Rule 26(b) of the Federal Rules of Civil Procedure, supra, provides that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.
The Court does not perceive the relevancy of question number 1 propounded by the defendant, nor has the defendant shown that the question of whether or not the plaintiffs are presently employed has any bearing on the subject matter involved in the pending action.
However, I think that question number 2 propounded by the defendant is relevant, and that the plaintiffs should be compelled to answer it. The defendant, in its answer to the complaint, alleges, among other things, that the plaintiffs were employed by the defendant in bona fide executive, administrative or professional capacities, within the definition and meaning of Section 13 of the Fair Labor Standards Act of 1938, supra. Therefore, the nature of the plaintiffs' employment and their respective responsibilities while employed by the defendant are at issue in this case, and I think that the defendant should be permitted to discover whether the plaintiffs have made any statements to certain persons concerning these matters.
The defendant's motion to compel answers is granted as to question number 2 propounded by the defendant, and is denied as to question number 1.