Muzak Corp. v. Muse-Art Corp.

WELSH, District Judge.

This is plaintiff’s motion to compel defendant, by its Vice-President, Max Ingber, to appear for depositions on oral examination.

1. It is the contention of the defendant that the Court should enter an order providing that the defendant is not required to appear because the sole purpose of the oral examination is to annoy, embarrass and oppress the defendant. See Federal Rule 30(b), 28 U. S.C.A.; In support of this contention the defendant urges that the only issue in this case is whether receipts from its sales of equipment are to be included in its gross receipts for the purpose of determining the royalty due the plaintiff and that said issue is solely one of law, depending upon the interpretation of the franchise agreement.

2. The contention is not persuasive for a reading of the complaint discloses that the issue is in reality the full extent of defendant’s underpayments, through whatever devices the defendant may have adopted to conceal its actual gross receipts. We feel that as to each such device, including the one mentioned in defendant’s brief, namely, the sales of equipment, the plaintiff is entitled to develop the facts by oral depositions.

3. The right of the plaintiff to orally examine the defendant is not affected by the fact that the defendant has now agreed to permit plaintiff to inspect its books and records for the reason that a party itself, not its adversary, has the right to invoke any one of the pre-trial discovery procedures it chooses.

4. In the light of our holding herein it is unnecessary to pass on plaintiff’s contention to the effect that defendant’s request for relief under Federal Rule 30(b) was not seasonably made.

5. The motion is accordingly granted.

An order requiring the defendant, by its Vice-President, Max Ingber, to appear for depositions on oral examinations within thirty (30) days of the entry of the order will be prepared and submitted.