The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
These are two motions; one by the plaintiff for an order "vacating and setting aside the defendant's notice, dated September 29th, 1938, for the examination of the plaintiff pursuant to Rules 30-37 of the Rules of Civil Procedure for the District Courts of the United States", 28 U.S.C.A. following section 723c, the other by the defendant for the following relief:
"1. Precluding the plaintiff from giving any evidence upon the trial of this action.
"(a) In support of any item upon which he claims commissions, as to which items he at this time has any knowledge, except such items as are enumerated in one or more of the bills of particulars heretofore served by him herein, and as to which he gives the name of the customer, the date of the order, the date of the shipments to the customers, the amount of the shipments, the rate of commission, and the gross commission.
"(b) In support of any deduction from his commissions made by the defendant, and which the plaintiff claims was improperly made, as to which he at the present time has knowledge or information, except such deductions as are set forth in one or more of the bills of particulars heretofore served by the plaintiff herein.
"2. Appointing some person, as Special Master or Auditor herein, at St. Louis, Mo., pursuant to the provisions of subdivision 5 of Rule 16 of the Rules of Civil Procedure of this Court, authorizing and directing him to make a preliminary examination of the issues as to the sales made by the defendant upon which the plaintiff claims commissions, and the deductions from or charges or credits against the same, and the damages, if any, to which the plaintiff will be entitled if he recovers in this action; the findings of such Auditor or Special Master to be used as evidence."
This action is brought by the plaintiff to recover for commissions which he claims he earned as a salesman. In addition to a general denial defendant has interposed the defense of accord and satisfaction.
Counsel have referred to Rule 30(b) and 30(d) as governing the disposition of the motion relating to the examination before trial. Rule 30(b) and 30(d) provide as follows:
"Rule 30. * * * (b) After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. * * *
"(d) At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subdivision (b). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable."
Rule 30(b) provides that the Court, after the service of a notice of taking deposition by oral examination, upon a motion seasonably made upon notice and for a good cause shown by any party or by a person to be examined, may make an order that the deposition shall not be taken, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited as to certain matters, or the Court may make an order which justice requires to protect the party from annoyance, embarrassment, or oppression.
Rule 30(d) provides that during the taking of the deposition, upon motion duly made showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the party, the Court may make an order directing the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of taking the deposition as provided in subdivision (b).
There is nothing in the motion papers justifying "an order vacating and setting aside the defendant's notice * * * for the examination of the plaintiff." In this case the defendant has interposed a separate defense of accord and satisfaction. Even if that were not so and he had only interposed a general denial, that would not defeat the right of the defendant to examine the plaintiff before trial.A party may have an examination before trial even though he does not have the affirmative upon the issue upon which the examination is sought. I had occasion to ...