DISTRICT COURT, E.D. NEW YORK
November 23, 1933
The opinion of the court was delivered by: BYERS
BYERS, District Judge.
This is a motion by the libellant in a personal injury cause, for an order pursuant to Admiralty Rule 32 (28 USCA § 723) promulgated by the Supreme Court, directing the respondent to make discovery of and to produce on oath a copy of the testimony taken and a record of the proceedings had before the Board of Investigation convened on the Coast Guard Destroyer McDougal, on March 13, 1933.
Apparently the subject-matter of the investigation was the libellant's injury and the attending circumstances.
The moving affidavit recites the examination and cross-examination of the libellant and respondent's witnesses, without describing the nature of their testimony, and the taking and transcription of the testimony by a yeoman, second class.
It was stated on the argument, and in libellant's brief, that the purpose of the motion is to prepare for the cross-examination of respondent's witnesses in case their testimony at the trial shall differ from that given at the inquiry. If this is all the libellant has in mind, his purpose would be served if the respondent were directed to have the record in court at the trial, and to afford to libellant's proctors an opportunity to examine it at the close of direct examination as to each witness separately other than the libellant; this, to enable libellant's proctors to cross-question as may be found appropriate. Doubtless, if the matter be explained to the judge conducting the trial, he will permit libellant's proctors the required time for reading such record, intermediate direct and cross examination.
Except to the extent above indicated, the motion will be denied, for the reasons stated in the opinion in The Papoose-Wright (D.C.) 2 F. Supp. 43, 1932 A.M.C. 1419.
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