Lecklikner v. Transandina Compania Naviera, S. A.

MEMORANDUM AND ORDER JOHN W. LORD, Jr., District Judge. At the pre-trial conference in this case held October 26, 1966, third-party defendant requested the opportunity to depose plaintiff for discovery purposes. Plaintiff objected for the reasons that the defendant had already deposed plaintiff and that the purpose of this present application is to obtain contradictory statements from the plaintiff. At that time, I directed the parties to file briefs and fixed argument for November 9, 1966. I hold that the third-party defendant is entitled to take the depositions of the plaintiff. Rule 26(a), Fed.R.Civ.P. provides, in part, as follows: “(a) When Depositions May be Taken. Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. * * * ” (Emphasis added) Rule 26(d), Fed.R.Civ.P. provides, in part, as follows: “(d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.” (Emphasis added) The Rule would appear to be clear and unambiguous. See also Fruit Growers Co-Op v. California Pie & Baking Co., 3 F.R.D. 206 (E.D.N.Y.1942). Accordingly, this 10th day of November, A.D. 1966, after argument and the submission of briefs, permission is hereby granted third-party defendant to take the deposition of the plaintiff forthwith. And it is so ordered.