Subsection (b) Orders for the Protection of Parties and Deponents

Subsection (d) Motion to Terminate or Limit Examination

Eastern District of New York

November 1, 1938

Nelson E. Newcomb v. The Universal Match Corporation.

MOSCOWITZ, D. J.

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 38 of the Rules of Civil Procedure for the District Courts of the United States", 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 particulers 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.

n(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.

"12. Appointing some person, as Special Master or
Auditor herein, at St. Louis, Mo., pursuant to the provisions
of subdivision 5 of Rulo 16 of the Rules of Civil Procedure
of this Court, authorizing and directing him to make a pre-
liminary examination of the issues as to tho 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. Rules 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 cortain matters, or that the oxamination shall be held with no one present except the partics to the action and their officers or counsel, or that after being scalod 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 filo specified documents or information onclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to proteet the party or witness from annoyance, embarrassment, or oppression."

"Rule 30 (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 oxamination 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 ponding or the court in the district where the depo-
sition is being taken may order the officer conducting tho
examination to coase forthwith from taking the deposition, or
may limit tho scopo and manner of the taking of the deposition
as provided in subdivision (b). If the ordor made terminates
the oxamination, it shall be rosumed thoroafter only upon the
ordor of the court in which the action is ponding. Upon do-
mand of the objecting party or deponent, the taking of the