Boysell Co. v. Colonial Coverlet Co., 230.

• Decision Date: 16 August 1939
• Docket Number: No. 230.,230.
• Citation: 29 F. Supp. 122
• Parties: BOYSELL CO. v. COLONIAL COVERLET CO., Inc.
• Court: U.S. District Court — Eastern District of Tennessee

29 F. Supp. 122

BOYSELL CO. v. COLONIAL COVERLET CO., Inc.

No. 230.

District Court, E. D. Tennessee, S. D.

August 16, 1939.

R. Carmack Waterhouse, of Chattanooga, Tenn., for plaintiff.

Charles A. Noone, of Chattanooga, Tenn., for defendant.

DARR, District Judge.

The question is on the motion to require the defendant to make answer to certain interrogatories which were objected to by the defendant and not answered. The interrogatories were in the nature of a discovery as to the character of the machines used by the defendant.¹

It is my judgment that the question is to be determined under the provisions of Rule 33, of the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. It is true that the litigation started and the interrogatories propounded before these Rules came into effect. But I understand the general rule of law is that procedural regulations, not affecting substantive rights, directly or indirectly, govern from the time such rules of procedure became effective.

It is obvious that the intention of the new rules is to expedite litigation, to save cost and principally and primarily to reach justice by obtaining a full disclosure of the truth in connection with any controversy. This does away with the idea that existed in certain quarters that the administration of the law was a game whereby an artful pleader might secure an unwarranted advantage over his less skilled opponent.

With this idea of intention of the Rules in mind, it is my judgment that a party under Rule 33, by interrogatories, may obtain a disclosure of matters in controversy, conditioned that such disclosure is pertinent to the issues and that such disclosure will not affect the fixed right of the person interrogated on matters not wholly germane to the question in dispute. In other words, being careful to hold disclosures to the strict issue and, using a common expression, the parties may be required "to lay all the cards on the table."

1. The first objection is to the 3rd interrogatory which makes inquiry as to when the defendant knew of the plaintiff's patent or infringement.

This is a matter that will have to be disclosed at some time in the course of the litigation and is a part of the issue and not harmful to the defendant. This objection will be overruled. Paraffine Cos., Inc. v. Wieland, D.C., 17 F.2d 992.

2. The next objections are as to interrogatories Nos. 4, 10, 13, 16, and 19, which are objected to by the defendant on the grounds that the answers called for explanation of machinery which may not be covered by the complaints in the bill. As suggested in the brief for the plaintiff, these questions are in effect calling upon the defendant to point out the difference, if any, in the machine used by it and the machine covered by the plaintiff's patents.

I think that discovery should be confined to bare facts and not to any elaboration of explanation or comparison. These latter matters are proper for proof on the trial of the case. Hence, I think the objections to these interrogatories are well taken and are sustained. Paraffine Cos., Inc. v. Wieland, D.C., 17 F.2d 992; Koehring Co. v. Foote Co., D.C., 21 F.2d 569.

3. The next objection is to answering interrogatories 6, 22, and 24, on the ground that these interrogatories are as to damages rather than the initial question of infringement. My judgment is that these questions will be proper for a special master on ascertaining damages, if such should be awarded, and if answered now would be of little benefit. These need not be answered.

4. Objection is made to interrogatory number 21. This question is a little broad and it might be somewhat cumbersome to furnish a model or specimen of each machine, yet this is the subject matter of the litigation and so far as possible, I think should be answered. In this respect the objection will be overruled. Paraffine Cos., Inc., v. Wieland, D.C., 17 F.2d 992.

5. The last objection is to...