Summary
In Freeman v. Hotel Waldorf-Astoria Corporation, 27 F. Supp. (D.C.S.D.N.Y. 1939) the court held that the presence, for oral examination before trial, of an employee of a corporate party must be obtained by subpoena.
Summary of this case from Cannon v. Virginia Stevedoring Corp.Opinion
HULBERT, District Judge.
Action for damages for personal injuries. Plaintiff claiming to be a guest of defendant's hotel alleges he was assaulted by an unidentified intoxicated stranger. After issue joined he served a notice to examine the defendant 'by the officers, directors, managing agents or employees having knowledge thereof' at a specified time and place before a designated Notary Public upon the subject matter involved which plaintiff attempted to particularize in eight paragraphs. This was unnecessary. Rule 26(b), 28 U.S.C.A.following section 723c. But the notice does not comply with Rule 30(a) which requires that it shall state the 'name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. ' This is essential to make Rule 45 effective. Plaintiff claims, however, it was not necessary to obtain subpoena because Rule 37(d) controls. That is true as to a party or an officer or managing agent who wilfully fails to appear but not to employees. Motion granted without prejudice so that plaintiff may proceed in accordance with the Rules.
Hyman I. Fischbach, of New York City, for plaintiff.
Caverly, Dimond, Barton & O'Gorman, of New York City, for defendant.