Kane v. Sesac, Inc. , 3 F.R.D. 174 ( 1942 )

COXE, District Judge.

The defendant Bregoff has in his answer set up a counterclaim against the plaintiff for $25,000. This counterclaim is asserted only against the plaintiff, and is not involved in the bankruptcy proceedings; it would in no way be affected by a stay or dismissal of the main action. I think, therefore, that the defendant Bregoff is subject to examination with respect to the counterclaim. The notice to produce is, however, objectionable. If the purpose is to inspect designated documents, etc., Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, should be followed; otherwise a subpoena should be obtained under Rule 45.

The motion is denied insofar as it seeks to stay the examination or vacate the notice for the deposition; it is granted as to the notice to produce, without prejudice to proceeding as above indicated.