Opinion
Nicholas T. Babolia and others brought action against Local 456, Teamsters and Chauffeurs Union. The plaintiffs made an ex parte application for leave to serve notices of taking of depositions less than 20 days after expiration of time of commencing of the action. The District Court, Holtzoff, J., held that a mere desire on the part of a plaintiff to secure priority over possible attempt on part of a defendant to take depositions, is not sufficient reason for granting of leave of court to take depositions prior to expiration of 20 days from commencement of action.
Application denied.
Emanuel Tacker, New York City, for plaintiffs.
HOLTZOFF, District Judge (sitting by designation).
This is an ex parte application under Rule 26(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for leave to serve notices of taking depositions within 20 days after the commencement of the action.
Under the present Federal Civil Procedure, the utmost liberality prevails in respect to discovery. Depositions may be taken on notice without an order of the court. One of the few limitations, however, is that the plaintiff may not serve a notice of the taking of depositions until after the expiration of 20 days from the commencement of the action. If it is desired to commence proceedings to take depositions prior to that time, leave of court is required. Permission to do so, however, is not granted pro forma.
In order to warrant an exception to the Rule which prescribes the time limitation, there must exist some unusual circumstances or conditions which would be likely to prejudice the plaintiff if he were compelled to await for the required period. For example, if the prospective witness is about to leave the jurisdiction permanently, or for a long period; or if the prospective witness is infirm, it may be appropriate to expedite the taking of his deposition. Other possible circumstances leading to the same result may be envisaged. In the absence of some valid, affirmative reason for making an exception to the time limitation, leave to serve notices of taking depositions prior to the expiration of the prescribed period, should not be granted. A desire on the part of the plaintiff to secure priority over a possible attempt on the part of the defendant to take depositions, is not sufficient reason.
In view of the absence of the necessary showing in this case, the application is denied.