HOPPE v. W. R. OSTRANDER & CO.

HOPPE v. W. R. OSTRANDER & CO. (Circuit Court, S. D. New York. December 7, 1910.) Witnesses (§ 16) — Subpcena Duces Tecum — Setting Aside. A subpoena duces tecum, issued at the instance of complainant in an infringement suit, to require the production of books and records of defendant, set aside as too broad in its requirements. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 20, 26; Dec. Dig. § 16.*] In Equity. Suit by Oscar Hoppe against W. R. Ostrander & Co. On motion by defendants to vacate subpoena duces tecum. Motion granted. H. Rinsly Johnson, for complainant. Robert Starr Allyn, for defendant. For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — EACOMBE, Circuit Judge.] EACOMBE, Circuit Judge. Some of the objections to the subpoena advanced on the argument have nothing to do with this motion. They go to the merits of the controversy, and will no doubt be raised and disposed of at the proper time. The court is at a loss to see why the complainant is undertaking to make proof of many sales at this stage of the case. The single sale, already proved, should, it would seem, establish a' prima facie case. If it is sought, by defendants’ testimony, to excuse or explain away this sale, complainant will have the opportunity on rebuttal to sustain the bill by showing other sales; indeed, it may bring out enough of them on cross-examination of defendants’ witnesses. Manifestly, at this stage of the case, complainant should not go into an accounting, and show all sales of the character complained of. Nevertheless, counsel and not the court is trying the case, and if he thinks his duty to his client requires him to show enough sales to establish a course of business, he may do so. This particular subpcena, however, is too broad. If he will call some one familiar with the business methods and records of defendant, he may ascertain what particular books and papers preserve a record of tire transactions, and may then limit his subpoena to what is necessary. When this is done,' and new subpoena issued, the court will indicate some way in which the books and- papers may be used to prove 'his case, without throwing them open to his unrestricted inspection. Motion to set aside this subpcena is granted.