The opinion of the court was delivered by: BYERS
Motion by defendant to vacate a notice of taking a deposition de bene esse of a witness pursuant to title 28 U.S.C. § 639 (28 U.S.C.A. § 639).
The notice is challenged upon the ground that the witness resides within 100 miles of the place of trial and is not "about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than 100 miles from the place of trial, before the time of trial * * *."
That challenge the plaintiff has failed to meet in the answering affidavit of her attorney.
The power of the court to vacate the notice is doubted, according to Kline Bros. & Co. v. Liverpool & London & Globe Ins. Co. (C.C.) 184 F. 969. See also, Dowling v. Jones (C.C.A.) 67 F.2d 537, at page 538.
The case of seiden v. Concordia Fire Ins. Co. (D.C.) 49 F.2d 474, has also been consulted, which involved a motion to suppress a deposition.
It is thought that the court is not without the power to deal with a situation which seems to involve the question of whether the plaintiff has shown that the statute applies at all, without putting the parties to the trouble and expense of participating in what may prove to be an idle ceremony.
It is deemed that the plaintiff has not shown that the conditions exist which would entitle her to take the deposition, but, if those conditions should arise, she should be permitted promptly to avail herself of her statutory right.
Accordingly the stay contained in the order to show cause will be continued, with the right to the plaintiff to move to vacate it, upon two days' notice, upon a showing that in fact the witness is question is about to depart from his domicile to a greater distance than 100 miles from the place of trial.
Motion denied except as indicated. Settle order.
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