Opinion
April 4, 1940.
Frederick E. King, for the petitioner.
Gustave Simons, for respondent Helen B. Ridder.
Black, Varian Simon [ Herbert M. Simon of counsel], amici curiae.
Motion is granted. The reports sought to be produced by subpoena duces tecum are at best hearsay statements obtained by investigation of the employees and not, therefore, evidence of any fact sought to be established in the action pending between the husband and wife. The investigations are concededly made without the knowledge of the person involved in the reports and the petitioner should not be compelled to produce the same and disclose the contents which are entirely confidential to those seeking the reports. The effect here is to obtain an inspection and discovery of reports to which neither of the parties to the action is entitled and, in the circumstances, petitioner should not assume the hazard at the time of the examination of a party objecting to the offer in evidence when in the first instance it is apparent that the reports are inadmissible as hearsay. Moreover, the witness may not on the examination raise the objection as to the incompetency of the proof, not being a party to the action. The remedy is to move for a vacatur of the subpoena and the motion is granted and subpoena vacated.