Summary
In Sowers v. General Motors Corp., 16 F.R.D. 562 (E.D.Pa.1954), the court ordered the defendant to appear, at his own expense, for plaintiff's deposition in the district where the action was lodged; again, despite plaintiff's indigency, no stenographic costs were advanced.
Summary of this case from Doe v. United StatesOpinion
Action arising from automobile accident. The District Court, Welsh, J., held that plaintiffs, who were a destitute widow and her three minor children, and who resided in district in which automobile accident had happened, and in which other witnesses lived, were entitled to obtain depositions of defendant motorist in such district, even though motorist, not corporate defendants, would have to bear the resulting transportation costs and loss of wages, and though information could have been sought by interrogatories or by referring matter to counsel in district of motorist's residence.
Plaintiff's motion granted.
Richter, Lord & Farage, Philadelphia, Pa., for plaintiffs.
John F. Donohue, Philadelphia, Pa., for defendants.
WELSH, District Judge.
In these actions, plaintiffs are seeking the depositions of the defendant, Kenneth Wymer, driver of a vehicle owned by the corporate defendants. The defendants are unwilling to have the driver, a resident of Pontiac, Michigan, appear for depositions here, Philadelphia, Pennsylvania, unless all of the travel expenses and wages lost by the driver while attending the depositions are paid by the plaintiff. The matter is before the Court on plaintiffs' motion under Fed.Rules Civ.Proc. rule 26, 28 U.S.C., to compel the driver to appear for depositions.
A determination of the question of whether or not a party is obliged to pay the transportation costs and lost wages of an individual whose depositions are sought rests in the sound discretion of the Court, and how the Court exercises the discretion lodged in it depends on the facts and circumstances of a particular case. The plaintiffs in urging that the Court exercise its discretion in their favor advance the following facts:
1. The depositions of the driver are being sought at the place where plaintiffs commenced their action; 2. All of the plaintiffs reside in this District; 3. This is the District where the accident happened and where other witnesses are to be found, and 4. Plaintiffs are a destitute widow and her three minor children, the oldest of which is ten years of age.
The defendants, on the other hand, urge the following facts in their favor:
1. The transportation costs and wages lost will be borne by the driver and not the corporate defendants; 2. The information sought from the driver can be obtained equally as well by interrogatories, and 3. Plaintiffs can refer the matter to counsel at the residence of the operator, namely, Pontiac, Michigan.
In our judgment the facts favor the plaintiffs and we accordingly grant plaintiffs' motion under Rule 26.
An appropriate order will be prepared and submitted.