Opinion
Action by Mary S. French against Evangeline Zalstem-Zalessky and another. On determination of motions made under Rules of Civil Procedure governing taking of depositions.
Motions denied.
Simpson, Brady & Noonan, of New York City, for plaintiff.
Christensen & Eberlein, of New York City, for defendants.
HULBERT, District Judge.
Service of process was made upon the defendants within this District and they have appeared and answered the complaint. It is not essential to secure their presence that they should be served with a subpoena pursuant to Rule 45, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c. This applies to witnesses. Parties over whom the court has acquired jurisdiction and who fail to respond to a notice for examination pursuant to Rule 26 et seq. may be penalized by striking out the pleading.
The defendants did not make such a showing as is required by Rule 30(b) and the motion will be denied as to them, without prejudice, however, to an application pursuant to Rule 30(d).
In view of the absence of the defendants from the United States at the present time, the date of the examination may be fixed in the order to be entered for any day during the month of June next upon which counsel may agree.
It will be just as inconvenient for counsel to go to the defendants' claimed place of residence in Connecticut as it will be for the defendants to come to New York.
So far as the motion made on behalf of the Insurance Company is concerned, that, too, will be denied, without prejudice. Of course the insurance carrier will not be required to disclose any information which is privileged. But that cannot be left to its own determination. The objection must be made and presented pursuant to Rule 30(d). Submit order.