of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held."
Rule 30 (b) provides: "* * * the court in which the action is pending may make an order that the deposition shall not be taken, * * * or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters."
Rule 37 (a) provides: "If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court in the district where the deposition is taken for an order compelling an answer."
Rule 37 (b) provides that a witness who refuses to answer any question, after being directed to do so by the court in the district in which the deposition is being taken, may be considered in contempt of that court.
Rule 1 provides that the Rules of Civil Procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action."
The deponent should be compelled, under Rule 37 (a), to answer the questions propounded, aforesaid, unless the matters involved therein are privileged. The general rule is that a person is competent to testify to all matters within his knowledge. The privilege to not testify is exceptional. When such a privilege exists, it must be asserted.
The authorities cited by The United Air Lines Transport Corporation in support of their contention that the matters contained in the questions propounded are privileged are: Bough v. Lee, D.C., 29 F.Supp. 498; Price v. Levitt, D.C., 29 F.Supp. 164; Murphy v. New York & Porto Rico S.S. Co., D.C., 27 F.Supp. 878; Lalance & Grosjean Mfg. Co., et al. v. Haberman Mfg. Co., C.C., 87 F. 563; Wigmore's treatise, Sec. 2318.
In Bough v. Lee, supra, it is stated [ 29 F.Supp. 501]: "The statement was not made to Mr. Mellen by his client, but was obtained from the plaintiff by an investigator of the insurance company, as a routine matter. It was not obtained by the attorney in preparation for, nor in anticipation of, this action."
In Price v. Levitt, supra, it is stated [ 29 F.Supp. 166]: "The investigations were not made by an Attorney, or anyone acting in his behalf, not did the defendants have an Attorney at that time. The relationship of Attorney and client did not exist between the defendants and the insurance company, * * *."
In wigmore's treatise, supra, it is stated: "In the first place, a document of the client existing before it was communicated to the attorney, is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege. Documents of the latter sort are therefore exempt from production under a bill of discovery; while documents of the former sort are not exempt from production under a bill of discovery or the modern statutory motion to produce, * * *."
In Lalance & Grosjean Mfg. Co., et al. v. Haberman Mfg. Co., supra, it is stated that letters between a complainant and its attorneys are privileged. And further, in regard to an expert it is stated [ 87 F. 565]: "It does, however, appear that he has been retained by plaintiffs as an expert to assist them in the presentation of their case. As such the witness would seem to come within the privilege suggested in the former memorandum, -- as similar to that of counsel. More careful reflection has still further confirmed the impression that such privilege should be forfeited if the 'scientific counsel' assume the role of a witness."
The authorities relied upon by The United Air Lines Transport Corporation relate to communications and reports between attorneys and clients, and in one case, to a communication between attorneys and an engineer. These authorities are not applicable to the questions under consideration, as they do not involve any reports or communications from the deponent to The United Air Lines Transport Corporation. As these questions do not fall within the authorities relied upon by The United Air Lines Transport Corporation, nor within any other rule cited by said corporation, the deponent should be required to answer said questions.
The deponent, Robert F. Mehl, is directed to answer the questions which he refused to answer on the ground of privilege, which are set forth in Exhibit A attached to the motion in this case.
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