Herbst v. Keystone Driller Co. — 158 A.D. 503

Majority

p. 503

Robert Herbst, Respondent, v. Keystone Driller Company, Appellant.

First Department,

October 24, 1913.

Headnote

Witness — interrogatories for examination of foreign witness — production of documents— order modifying.

fiction for libel. A commission issued for the examination of a witness in a foreign country was amended so as to require him to produce all communications between the defendant’s agent and their foreign representative. These letters were numerous, personal and extensive, covering many matters not related to the issues in the action. Held, that the order should be modified by requiring the witness to attach copies of' such parts of said communications as referred to the issues involved and requiring him to produce at trial the complete communications or copies thereof for submission to the trial judge.

Appeal by the defendant, Keystone Driller Company, from so touch of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of June, 1913, resettling a prior order entered in said clerk’s office on the 19th day of May, 1913, as disallows and amends certain interrogatories and cross interrogatories attached to a commission to examine witnesses in a foreign country.

Cornelius P. Kitchel and Harry D. Nims, for the appellant.

Alfred H. Townley of counsel [Hoadly, Lauterbach & Johnson, attorneys], for the respondent.

This is an action for libel. .A commission was issued to examine witnesses in Brazil. The 34th interrogatory addressed to the witness Oscar E. Taves required the witness to state the information in his possession prior to the writing of a certain letter by his firm on which he based certain statements set out, and continued: “Include in your answer a statement of such facts as you knew of your own knowledge, and produce the letters or other communications from other persons by which you obtained such facts as were not known to you of your own knowledge, and. upon which you based these statements. Cause a copy to be made of the parts -of such communications upon which you placed reliance in making the statements in the letter above referred to, signing such copies yourself, and causing the • Commissioner to certify to the correctness of such copies.”

The order appealed from directed that said interrogatory be disallowed as proposed and the said interrogatory amended so as to require the witness to produce the complete communications referred to therein instead of causing parts thereof to be attached. This would require the entire correspondence between H. S. Henry & Son, the defendant’s agent, and Oscar Taves & Co., Henry’s Brazilian representative,. between the period of January, 1911, and May, 1911, to be attached to the commission. These letters are numerous, personal and extensive, and cover a great many matters which do not relate in any way to the issues in this action. They include many communications in regard to business policy, the credit and integrity of persons dealing with the defendant company and its agents, and like matters which are confidential and ought not to be divulged unless required by the exigencies of the case.

Section 909 of the Code of Civil Procedure provides that “ A commission * * * with the certificates, returns, depositions and exhibits thereto annexed, must remain on file in the office of the clerk. * * * They are always open to the inspection of the parties, either of whom is entitled to a copy of them or of any part thereof on payment of the fees allowed by law.”

If the order were permitted to stand the result would be that many important confidential business transactions utterly

p. 505

unrelated to the case at bar would be exposed, and such revelation might be a serious business detriment. On the other hand, it would not be entirely fair to permit the witness to extract only such parts of the communications as he might determine upon.

In order to safeguard the interests of both sides the order appealed from should be modified by providing as follows: “Ordered, that direct interrogatory Ho. 34, proposed to be administered to the witness Oscar Taves, be amended so as to require the witness to attach copies of such parts of the communications received from H. S. Henry & Son, as refer in any way to the Keystone Driller Company, or to the sale of drilling machines to the Brazilian government; and upon condition that the Keystone Driller Company produce at the trial of this action the complete communications referred to, or copies thereof, and submit the same to the trial judge for comparison with the extracts attached to the answer to interrogatory Ho. 34, pursuant to this order, and in default thereof the written answer to said 34th interrogatory be stricken out,” and as so modified affirmed, with ten dollars costs to the appellant.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs to appellant. Order to be settled on notice.