Here, however, the petition was properly before the court on a substantial allegation of usurpation of power in ordering any examination of a defendant, an issue of first impression that called for the construction and application of Rule 35 in a new context.
Petitioner does not challenge the holding in Sibbach as applied to plaintiffs. And the basic question at stake is whether any of those devices may be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation.
It happens in this case that it is the plaintiff's attorney who demands such unprecedented latitude of discovery and, strangely enough, amicus briefs in his support have been filed by several labor unions representing plaintiffs as a class. I would reject this dictum and reverse.
IV There remains the issue of the construction of Rule 35. Relator's 1992 injury in which a piece of aluminum struck his eye, and remains lodged within it, is an injury of such proportions that it puts Williams' eye condition into controversy and warrants an examination under Rule 167a. After the Court of Appeals denied mandamus, the order was corrected by the District Court to reduce the number of examinations to the four requested.
We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. In his motion for an eye examination, Plaintiff Rubin states that Williams testified in his own deposition that he has a piece of aluminum embedded in his right eye as a result of an accident that occurred when Williams was working on a trailer some two years prior to the wrecker-pedestrian accident.
Contract Carriers and National Lead then petitioned the District Court for an order directing petitioner Schlagenhauf to submit to both mental and physical examinations by one specialist in each of the following fields: Just v. The petition alleged. Nor did he direct these interrogatories either to the tug owners or to Fortenbaugh by way of deposition; Rule 26 thus could not come into operation. This proviso requires a discerning application by the judge, who must decide whether the party requesting a mental or physical examination has adequately demonstrated the existence of the Rule's requirements of "in controversy" and "good cause," which requirements are necessarily related.
For me, this reasoning is unacceptable. Go to All of these requirements are met by Rubin. See also 3 Ohlinger's Federal Practice 490 1964 ed. Sibbach v. United States Lines Co. Manifestly the decision of the District Court reviewed by the Court of Appeals lacked the essential quality of finality; it involved but interstitial rulings in an action not yet tried.
Thus in a suit by an injured employee against a railroad or in a suit by an insured person against an insurance company the corporate defendant could pull a dark veil of secrecy over all the petinent facts it can collect after the claim arises merely on the assertion that such facts were gathered by its large staff of attorneys and claim agents.
Cornell Law School Search Cornell. Steag, Inc. Abraham E. The court of appeals denied mandamus. Wisdom, J. It seems to me to strain credulity to impute to Congress the intent to eliminate state death remedies for unseaworthiness where the decedent is a seaman while refusing to do so in cases involving nonseamen.
Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule.