77 F.R.D. 16 (D.Conn. 1977), Civ. 15807, SCM Corp. v. Xerox Corp.

Docket Nº:Civ. 15807
Citation:77 F.R.D. 16
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:November 29, 1977
Court:United States District Courts, 2nd Circuit, District of Connecticut
 
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77 F.R.D. 16 (D.Conn. 1977)

SCM CORPORATION

v.

XEROX CORPORATION

Civ. No. 15807

United States District Court, D. Connecticut

November 29, 1977

In antitrust case, defendant objected to plaintiff's offer of a witness' deposition in evidence. The District Court, Newman, J., held that where crow's flight from location where witness was currently regularly working to courthouse would be less than 100 miles, use of his deposition at trial would not be permitted even though he resided more than 100 air miles from the courthouse.

Objection sustained.

Stephen Rackow Kaye, New York City, for plaintiff.

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

RULING ON OBJECTION TO DEPOSITION

NEWMAN, District Judge.

Recently in the trial of this complex antitrust case, the parties joined issue on whether the 100-mile distance from the courthouse specified in Fed.R.Civ.P. 32(a)(3)(B) for determining use of depositions at trial is measured along ordinary routes of travel or a straight line as the crow flies. SCM Corp. v. Xerox Corp., 76 F.R.D. 214 (D.Conn.1977). Having ruled in favor of the crow, the Court is now confronted with the equally grave matter of determining the point from which the crow begins its flight. As those sufficiently interested

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in the relationship between ornithology and federal civil procedure to read on will discover, this issue also requires some consideration of when the flight begins.

From their seemingly inexhaustible supply of novel fact situations, the parties have presented the following circumstances. A witness lives more than 100 air miles from the courthouse but is regularly employed at a location within 100 air miles. Plaintiff SCM offers his deposition in evidence, and defendant Xerox objects.

Rule 32(a)(3)(B) permits use of a deposition at trial if " the witness is at a greater distance than 100 miles from the place of trial . . . ." (emphasis added). SCM contends the rule permits use of a deposition at trial if the witness resides beyond 100 miles. Xerox contends the deposition may not be used if the witness, in the word of the rule, " is" within 100 miles. While several cases interpreting Rule 32(a)(3) have referred to the residence of the witness as a point of measurement,1 none appears to have done so in a case where selection of residence or some other location of the witness made any...

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