76 F.R.D. 214 (D.Conn. 1977), Civ. 15807, SCM Corp. v. Xerox Corp.

Docket Nº:Civ. 15807.
Citation:76 F.R.D. 214
Opinion Judge:NEWMAN, District Judge.
Party Name:SCM CORPORATION v. XEROX CORPORATION.
Attorney:Stephen Rackow Kaye, New York City, for plaintiff. Stanley D. Robinson, New York City, for defendant.
Case Date:September 21, 1977
Court:United States District Courts, 2nd Circuit, District of Connecticut
 
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Page 214

76 F.R.D. 214 (D.Conn. 1977)

SCM CORPORATION

v.

XEROX CORPORATION.

Civ. No. 15807.

United States District Court, D. Connecticut.

September 21, 1977

In private antitrust litigation, defendant objected to plaintiff's offer of deposition transcript of witness who resided in community 88 miles, by straight line, from site of trial, but 113 miles away by automobile. The District Court, Newman, J., held that in deference to uniformity of interpretation of similar 100-mile provisions contained in federal rules relating to subpoenas, attendance of witnesses, and service of process, the objection to the use of the witness' deposition would be sustained.

Objection sustained.

See also, D.C., 77 F.R.D. 16.

Stephen Rackow Kaye, New York City, for plaintiff.

Stanley D. Robinson, New York City, for defendant.

RULING ON OBJECTION TO DEPOSITION

NEWMAN, District Judge.

In the midst of this complex private antitrust litigation, the parties have joined issue on whether the 100-mile provision of Fed.R.Civ.P. 32(a)(3)(B) governing the use of depositions at trial is measured along a straight line on a map or along the ordinary, usual, and shortest route of public travel. The dispute inevitably implicates the similar 100-mile provision of Fed.R.Civ.P. 45(e)(1) governing subpoenas for trial witnesses.

Plaintiff has offered the deposition transcript of a witness who resides on Long Island in Great Neck, N.Y. That community

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is 88 miles ‘ as the crow flies' from Hartford, Connecticut, the site of this trial, and 113 miles away by automobile, the shortest route by normal modes of transportation. Defendant objects.

Rule 32(a)(3)(B) provides that the deposition of a witness may be used at trial if ‘ the witness is at a greater distance than 100 miles from the place of trial’ . Rule 45(e)(1) provides that a subpoena may be served ‘ at any place within the district, or at any place without the district that is within 100 miles of the place of the . . . trial’ .

The 100-mile distance as the limit in which witnesses might be inconvenienced by attendance at civil trials was established in the 18th Century, when, even allowing for the modern phenomenon of traffic jams, a journey of such distance was far more time-consuming than it would be today. See s 30, c. 20, Laws of 1789; Chapter 22, 1 Stat. 335 (1793). Early decisions...

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