Kenealy v. Texas Co.

• Decision Date: 05 October 1939
• Citation: 29 F. Supp. 502
• Parties: KENEALY v. TEXAS CO.
• Court: U.S. District Court — Southern District of New York

29 F. Supp. 502

KENEALY v. TEXAS CO.

District Court, S. D. New York.

October 5, 1939.

Jacob Rassner, of New York City, for plaintiff.

Tompkins, Boal & Tompkins, of New York City, for defendant.

COXE, District Judge.

This is a motion by the plaintiff for an examination before trial of an officer of the defendant, and for the production for inspection of various documents, records and photographs, believed to be in the defendant's possession. The motion is made under Rules 26 and 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The action is brought under the Jones Act, 46 U.S.C.A. § 688, for damages for personal injuries alleged to have been sustained by the plaintiff while employed as a seaman on one of the defendant's vessels.

The notice of motion describes the particular information sought to be obtained by the examination, and specifies in somewhat general language the different documents, records and photographs which the plaintiff desires to have produced for inspection. The defendant does not challenge the right of the plaintiff to the examination but objects to being required to produce for inspection the following:

Item 1. All statements of fellow employees aboard the vessel as to the accident.

Item 3. All records in the logs including the medical log of the vessel.

Item 4. All photographs made by or on behalf of the defendant prior to the institution of the above entitled action.

Prior to the making of the present motion, the attorney for the plaintiff was served with a notice for the examination of the plaintiff before trial under Rule 26. The plaintiff failed to appear at the time set for this examination, and is still in default. The defendant insists, therefore, that any examination of the defendant should be deferred until the plaintiff has submitted himself for examination pursuant to the notice already given.

The contested portion of the motion is governed by Rule 34, which provides that "upon motion of any party showing good cause therefor * * * the court * * * may (1) order any party to produce and permit the inspection * * * of any designated documents, papers, books, * * * photographs, * * * not privileged, which constitute or contain evidence material to any matter involved in the action * * *". Under this rule, the moving party is required to make a showing of "good cause" in support of the motion. This means some adequate reason for the desired production and inspection. The court may then order the production and inspection of "designated documents, papers, books * * * photographs * *", provided they are "not privileged", and also provided they "constitute or contain evidence material to any matter involved in the action". The language of the rule is so clear it hardly admits of construction. "Designated" documents, etc., are those which can be identified with some reasonable degree of particularity. It was surely not intended by the use of the word "designated" to permit a roving inspection of a promiscuous mass of documents, etc., thought to be in the possession, custody or control of the opposing party. Piest v. Tide Water Oil Co., D.C., 26 F.Supp. 295. It is also plain that the only documents which the court may order produced for inspection are those which constitute or contain material evidence in the case. This is in line with the settled law prior to the new rules. People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200; The Morro Castle¹, 1934. It has been recently held, also, in connection with Rule 34 that the materiality of the documents, etc., if challenged, must first be passed on by the court before the documents, etc., are submitted for inspection to the opposing party. United States v. Aluminum Co. of America, D.C., 26 F. Supp. 711.

The defendant challenges item 1 of the notice only on the ground of materiality. It is unnecessary, therefore, to consider whether the documents specified have been sufficiently identified to be classed as "designated". Item 1 requests the production of "all statements of fellow employees aboard the vessel as to the accident". This is understood to refer to statements made after the accident by other employees of ...