Miner v. Atlass

PETITIONER:Miner
RESPONDENT:Atlass
LOCATION:Fleetwood Paving Co.

DOCKET NO.: 156
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 363 US 641 (1960)
ARGUED: Mar 03, 1960
DECIDED: Jun 20, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – March 03, 1960 in Miner v. Atlass

Earl Warren:

Number 156, Honorable Julius H. Miner and Honorable Edwin A. Robson, Petitioners, versus H. Leslie Atlass.

Mr. Liebenson, you may now proceed.

Harold A. Liebenson:

Mr. Chief Justice, may it please this Honorable Court.

This is a case in admiralty.

It arose out of an occurrence in October 26, 1956, where two men were drowned in the Detroit Harbor Basin, who were alleged as crewmen of a yacht known as Sis, while returning from their shore leave.

Each men left a wife and three children, and the only persons present at the scene of this occurrence were members of the crew or members who were employees of the owner of the yacht.

In an effort to get information, the plaintiff in this case filed a motion for to — for discovery depositions as to one of the parties and two or three of the employees.

The lower court granted said motion and I must point out that there was a local admiralty rule in this Court and the respondent then took — sought a mandamus and prohibition writ in the Circuit Court of Appeals for the Seventh Circuit to prevent the taking of said depositions, oral and pretrial for discovery purposes only and Judge Lynn Parkinson wrote a — an opinion, holding that the writ of prohibition and mandamus should issue, which was issued, preventing the taking of the oral discovery depositions and further held that the local Admiralty Rule for this District, Rule 32 was void in that it exceeded the power of the local court.

This Court granted certiorari.

I — I might point out one other thing.

This is an admiralty because of a limitation action.

Previous to the limitation action being filed, a Jones Act suit was filed by one of the deceased — decedent’s representatives and the — then the limitation action was filed and an injunction was issued preventing the proceeding under the Jones Act.

So that the question we have is whether or not, oral pretrial discovery depositions are permissible in an admiralty case.

The question is only — is one of procedure but it affects the whole of the admiralty bar because it would — if the Court so holds in accordance with the Seventh Circuit, it will mean that it’s going to change the practice and procedure of the admiralty lawyers throughout the country.

I say this because the following district courts in the following states have similar admiralty rule — local Admiralty Rules pertaining to depositions, pretrial depositions, as similar to the one we have in our State, New York, Pennsylvania —

Felix Frankfurter:

May I interrupt?

Harold A. Liebenson:

Yes, sir.

Felix Frankfurter:

Is that Southern District of New York?

Harold A. Liebenson:

Both the Southern and Eastern Districts of New York have Rule 32 sir as to dep — oral pretrial deposition.

Felix Frankfurter:

Both the Southern —

Harold A. Liebenson:

And the Eastern.

Felix Frankfurter:

Whether the — was that rule before the Court of Appeals of the Second Circuit in Judge Clark’s opinion?

Harold A. Liebenson:

In the Mercado case?

Felix Frankfurter:

Yes.

Harold A. Liebenson:

No, sir.

He mentioned that it wasn’t discussed.

This all came after the — the New York rules, sir, came into effect after the Kelleher case when Judge Kaufman was appointed to the committee to formulate a rule and — and then the rule and the practice followed thereafter.

Felix Frankfurter:

I’m not sure I understand.

The Mercado case was decided in 1950.

Harold A. Liebenson:

So was the Kelleher if I remember correctly.

Felix Frankfurter:

Was — was there a rule in existence promulgated by the Southern District Court of the Southern District prior to the adjudication in Mercado?

Harold A. Liebenson:

If it was, sir, it is mentioned in the Mercado, but not discussed or taken as part of the — as taken as part of the case.

We have — I have it outlined in here —

Felix Frankfurter:

But the — but the decision —

Harold A. Liebenson:

Is not based on that, sir.

Felix Frankfurter:

It’s not based on that, but if —

Harold A. Liebenson:

No.

Felix Frankfurter:

— there was such a rule then the decision must be nullified.

Let me ask this for short, is that the rule today?

Can you say that today —

Harold A. Liebenson:

No.

Felix Frankfurter:

— the Southern District of New York, there is such a rule.

Harold A. Liebenson:

Yes sir, and it is the uniform and universal practice of all lawyers in New York to follow such rule.

Felix Frankfurter:

You — would you clear up my — I don’t understand.

I understand the Mercado decision to say that that is beyond the power of courts, is that?

Harold A. Liebenson:

Right, sir, but —

Felix Frankfurter:

Well then how can it be still persisting?

Harold A. Liebenson:

No.

The — the — the — what I have meant to say was that the — in the Mercado Case is not the law today.

Felix Frankfurter:

It’s not.

Harold A. Liebenson:

No, sir.

Felix Frankfurter:

Well has that been overruled by decision of the Court of Appeals?

Harold A. Liebenson:

By the — by the local court rule.

Felix Frankfurter:

But how could the District Court overrule the Court of Appeals even in New York?

Harold A. Liebenson:

Because sir it is a question — in the first place, sir, the Mercado case passed on the proposition of whether or not, the Court had the right to accept a — evidence deposition as evidence and not as to the taking of evidence.

Felix Frankfurter:

Well I don’t — I get darker and darker on this subject.

What is the point of —

Harold A. Liebenson:

I’m trying to help sir.

Felix Frankfurter:

— this if we can’t use it.

Harold A. Liebenson:

What is the point of the case?

Felix Frankfurter:

What is the point of authorizing the taking of their position if it’s inadmissible as evidence?

Harold A. Liebenson:

Because one is — one is a pretrial discovery deposition —

Felix Frankfurter:

Can it be used for trial —

Harold A. Liebenson:

— for the purpose of discovery and the other is for the using of the — of evidence — of the deposition as evidence in a trial and there is a great distinction between the two.

In a pretrial discovery deposition, all you’re trying to seek is information.

In taking an evidence deposition or when you try to utilize evidence from a pretrial deposition, you need a substantive law or substantive right to give you this.

Felix Frankfurter:

Well take your case.

Harold A. Liebenson:

I’d love —

Felix Frankfurter:

Are you — what are you after here, the deposition?

Harold A. Liebenson:

We’re after a deposition so we can find out what happened because we have two men who have died and all the people who were around the scene belong to the boat who are employees and we can’t get any information unless we ask them about it.

Felix Frankfurter:

Well the information that was authorized by Judge Miner and Judge — well Judge Miner —

Harold A. Liebenson:

Yes, sir.

Felix Frankfurter:

— would that be useful to get about the decision?

Would that be utilized here by you at the trial?

Harold A. Liebenson:

No sir.

It’s not for the trial.

It’s only for discovery purposes to give us a basis to proceed.

Felix Frankfurter:

The basis — the basis on which subsequently, but you can’t use it.

Is it a general rule that you can’t use what you get in a pre — pretrial discovery?

Harold A. Liebenson:

Unless —

Felix Frankfurter:

— as evidence?

Harold A. Liebenson:

Yes sir, unless for two reasons.

Number one, for impeachment purposes and second in order to use it for — for evidence you have to have a specific statute granting you the right to do so.

Felix Frankfurter:

Well, can you use it — at Miner of course.

Can you use it?

Could we use it for impeachment purposes if you are going to prevail in this case?

Harold A. Liebenson:

I’d say, yes sir because anything —

Felix Frankfurter:

Is it under the Mercado decision of Judge Clark?

Harold A. Liebenson:

I don’t consider the Mercado decision the law sir, because —

Felix Frankfurter:

Well —

Harold A. Liebenson:

— because there has been so much.

Felix Frankfurter:

I don’t know if it isn’t the law.

What I want to know is that the decision of the Court of Appeals of the Second Circuit and I want to know whether that governed litigation of Southern District of New York.

And the reason I persist about the Southern District of New York is because that of course is the most important admiralty centre in the country.

Harold A. Liebenson:

Yes.

That’s my point, sir.

Felix Frankfurter:

And so, it’s important for me to understand —

Harold A. Liebenson:

Since —

Felix Frankfurter:

— what the practice, the allowable practice in New York is.

Harold A. Liebenson:

I — I thought I made the statement too, Your Honor that the practice in New York is that there is universal taking of discovery depositions in admiralty cases based upon the local rule.

Felix Frankfurter:

Now my question is whether with Mercado on the books, could a proctor in New York impeach, use the pretrial discovery materials for impeachment purposes?

Harold A. Liebenson:

The question that I say is my — this is my opinion.

The answer is yes because you are not using it.

When you use something for impeachment, you are not using it as direct evidence.

You are using it to refute a story that someone is telling from the witness stand whereas if you took evidence, a deposition, then you would read all the evidence into the case as though it were a witness testifying on the stand.

In this other situation that you ask me, all you are saying to the person, did you not say under oath or at this and this time and then you only ask one question if it applies and only it has to be material when applied.

Felix Frankfurter:

Do I understand you to say that if this case — if this question, the use a free trial discovery material for impeachment purposes came up before the Court of Appeals of the Second Circuit, Judge Clark sitting, he would say that the Mercado case doesn’t apply.

Harold A. Liebenson:

I think so and I tell you why sir.

Felix Frankfurter:

Is there any decision on that?

Harold A. Liebenson:

Because right within six weeks after he wrote the decision in the Mercado case, the Republic of France versus Belships case came up which — where it was decided in that case and that — the citation on that is District Court 1950 and the citation 184, F 2d 119.

In that case, the court, the lower court, decided that as long as there was a rule, a local rule, then you are entitled to pretrial discovery deposition.

William J. Brennan, Jr.:

Is that after the Mercado?

Harold A. Liebenson:

Yes sir.

Yes sir and then the same — At that time, the Attorney did as the Attorney in our case did, sought a mandamus and prohibition — no, just a mandamus action into the Court of Appeals asking that this be prevented.

And in the — in the Republic of France versus Belships case, the Judge Clark who sat — who wrote the Mercado case and also said on the — in the decision of that case held that they were not entitled to mandamus and in effect held that the lower court ruling was correct.

Felix Frankfurter:

Are you — are you — am I wrong or right in finding Judge Clark’s opinion in Mercado and Judge Fee’s opinion in Dowling in contradiction.

Harold A. Liebenson:

I’d said so yes on a different basis but I’d say that they are — they are in contradiction.

We cite the Dowling case as a basis in —

Felix Frankfurter:

As a basis for what?

Harold A. Liebenson:

For permitting oral discovery depositions.

Felix Frankfurter:

And you’re not citing Mercado?

Harold A. Liebenson:

No sir.

But not —

Felix Frankfurter:

And you’re not saying that the law of the dist — of the Southern District of New York is the Dowling law, is that it?

Harold A. Liebenson:

The law of the Southern District of New York is the — is the law that has been cited in the — in the cases which I would be glad to — which we cite in our brief but which hold that where there has been where there is a local rule in force, then you have the right to take an oral discovery deposition and that came up in the Ludina case.

Felix Frankfurter:

Well I’m sorry to break-in on your argument, but when you said the Southern District of New York, that naturally raised a very important question in my mind because if you’re right about that then I must reread Mercado and get a different understanding of it.

Harold A. Liebenson:

I — If I — In our petition for certiorari, if the Court please, we presented letters and I have many more from all the leading practitioners in admiralty.

These are the largest firms in New York.

Felix Frankfurter:

I remember that.

Harold A. Liebenson:

And they have —

Felix Frankfurter:

And I was surprised to see Mercado.

Harold A. Liebenson:

And they — there isn’t one who has followed that since.

Now with regard to the practice of the —

Felix Frankfurter:

You were stating when I interrupted perhaps very unwisely, you were giving the list of districts —

Harold A. Liebenson:

Yes sir.

Felix Frankfurter:

— in which the — the use of them rule of the —

Harold A. Liebenson:

Local rule exists.

Felix Frankfurter:

The local rule prevails and I stopped you, I’m sorry.

You began with New York and naturally —

Harold A. Liebenson:

New York and then there is Pennsylvania, Maryland, North Carolina, if Your Honor would want the rule numbers, I can give it to you, South Carolina, Virginia, Canal Zone, Florida, Louisiana, Texas, Ohio, Missouri, Alaska, California, Washington and Oregon.

I’d like to point out also that some of these rules, for instance, in Texas and in Ohio have been existence for 28 and 30 years.

Potter Stewart:

Is that material in your brief or many of the documents submitted?

Harold A. Liebenson:

Yes sir we have a notice to the statistics here.

Potter Stewart:

Well, the rule — the jurisdictions and the numbers of the rule.

Harold A. Liebenson:

No sir, but I have them all here.

This has been some research since.

Charles E. Whittaker:

How is this material to our question —

Harold A. Liebenson:

Because sir, it’s material in that if this rule, if the Court holds that pretrial oral discovery depositions are not permissible in admiralty cases, that means that everyone of these states which have local rules and which are the coastal states and which are the great lake states that handle all the admiralty cases are going to have change their whole practice and their whole procedures.

Charles E. Whittaker:

You know whether there is uniformity among these rules?

Harold A. Liebenson:

Practically every rule, there is uniformity.

Harold A. Liebenson:

There is a difference of wording.

Some say that it will follow the FRCP 26.

Others say that they are permissible in the use, in the taking and then they list this to the use but they all say the same thing in effect.

And — and it’s — it’s been very —

(Inaudible)

Harold A. Liebenson:

Yes sir.

I’d de glad to.

The — this oral deposition is such a vital and important factor because of — of very many things.

First, they have become — it’s become the established admiralty practice throughout the country, throughout this — the coastal states and all the states with the rules.

It’s given lawyers the chance — a tool to better represent their clients and that’s on both sides no matter which side Your Honor.

It gives the lawyers the chance to go out and obtain and determine the facts.

It eliminates the element of surprise that has been so much a part of cases in the past and that has — they have tried to eliminate at the present time.

Charles E. Whittaker:

Hasn’t that always been true, I couldn’t agree with you more so let me say first, now then hasn’t that always been the case so in —

Harold A. Liebenson:

In what sir?

Charles E. Whittaker:

— admiralty litigation (Inaudible).

Harold A. Liebenson:

No sir.

They’ve never — the — the question of the oral deposition for discovery was never gelled until the rules came into effect.

Charles E. Whittaker:

Well I’m talking about the desirability of it from the reasons you’ve just been arguing.

That’s all — those — those reasons have always existed.

Harold A. Liebenson:

Excepting that as we get to use a tool more and more, if you learn more about it and today, for instance, we spend three and four times more on per case and the more we put into a case, the more we’re going to get out it and more we’re going to realize the significance of our work when it is finished.

Charles E. Whittaker:

The whole basis of this last question of mine was of what can you tell us was the reason why Rule 26, the federal rules or something like it hasn’t always existed alongside in admiralty — alongside law in equity?

Harold A. Liebenson:

Because sir there was never an adoption, the Supreme Court never adopted the FRCP 26 and that they did adopt 32 (c) which infers the right and then all the speculation arises among the writers, among the judges and everybody as to what — what — why did — why did they.

We don’t know that.

However, in going through my cases sir, I think that I will be able to answer some of that for you, sir.

Now as to these depositions, I would also like to point out outside of the advantages of it that they help promote — they help dispose the cases by settlement because what has happened in the past and I speak as a — as a lawyer who comes from the State where — where in our state court we’re waiting six and a half years now for a trial and it’s very important to us, when we’re — when we get to the deposition definition and we’re —

Earl Warren:

(Inaudible) the state courts exist?

Harold A. Liebenson:

Yes sir.

Our federal courts have done quite well.

Felix Frankfurter:

May I trouble you too?

Harold A. Liebenson:

Yes.

Felix Frankfurter:

Affirming to the order that was — that is under challenge here, what is that exactly that was ordered and that was stricken down by the Court of Appeals?

Harold A. Liebenson:

Twenty six, in the record it’s —

Felix Frankfurter:

Twenty six?

Harold A. Liebenson:

Twenty six-fifteen, do you want me to read it, sir?

Felix Frankfurter:

No I just want to – what page reference?

Harold A. Liebenson:

Page 15.

Felix Frankfurter:

Page 15, fifteen?

Harold A. Liebenson:

Yes sir.

Now when — when attorney –an attorney has an opportunity to face the witnesses to see the witnesses, to talk to them, he’s got a right to come back to his plan and tell them that what his feeling is with reference to settlement, with reference to trial and so forth.

We have been utilizing that to great assistance, because take this case.

We’re not permitted, if we’re not permitted to go ahead and take oral debt — discovery depositions, the only alternative would be written interrogatories.

Now for written interrogatories, these are — these are made up at the attorney’s office.

Questions are in advance, the attorney can ask the person a question, then write it down, but you don’t get the opportunity to know exactly what the person who is giving the information knows.

Whether its hearsay, whether this person is going to make a good witnessing court, whether it’s a personal takes a very, makes a believable statement and whether or not the questions that are so important to determine all the facts can be answered by this witness.

So, how can an attorney on their faces say to his client, “Well I know everything about this case and this is what I recommend, because we’re — we’re just held in the dark and yet it’s pretty difficult to make a recommendation until you see all of this from the witness stand.”

Question would be it’s either decided in Mercado and not one of the decisions.

Harold A. Liebenson:

No, sir.

The question in Mercado, they tried to use evidence.

An evidence.

Harold A. Liebenson:

Evidence, yes sir.

I — I think that the Court is —

Felix Frankfurter:

And you say — and you say we can — are you asking us merely to decide whether they can be required to appear before whomever — to appear before to be asked these questions and that — that wouldn’t imply anything as to the use to be made thereafter, is that right?

Harold A. Liebenson:

No sir, because our local rule is divided into two parts.

It’s divided first in the undertaking and then as to the use.

Felix Frankfurter:

No, but you’re —

Harold A. Liebenson:

We’re only asking about the taking.

We only want the taking.

We’re not interested in the use because we’ve got to prepare a case to represent these people.

Felix Frankfurter:

I must say I (Inaudible) the extensive had set me much more recent experience.

It does strike me as — I merely have to say that deciding this case can we have this fellow put through all this testimony and I’m not to imply anything, anything that used to be made of it.

Felix Frankfurter:

That seems to me to be a rather mutilated question.

Harold A. Liebenson:

We’re not implying anything from the use.

Sir, the whole purpose —

Felix Frankfurter:

I’m not saying you are (Inaudible)

Harold A. Liebenson:

— of your discovery practice is to obtain information.

Now, how are we going to know what these people saw.

Felix Frankfurter:

And one of the positions, you want to name them down so that you can rely in the courtroom, you can say — didn’t you say that and so?

Harold A. Liebenson:

We don’t —

Felix Frankfurter:

That’s one of the most important things about pretrial discovery.

Harold A. Liebenson:

If a person comes into a hearing for the purpose of lying, then this is one thing.

Felix Frankfurter:

Or forgetting his memory, all sorts of things.

Harold A. Liebenson:

It’s got to be something, sir, material for instance, if a — if you ask a witness on a deposition of what day, whether it was a Monday, or Tuesday, or Wednesday, that — that isn’t important.

He may make a mistake, but what if it goes to the very significant thing that as in this case, that there was no board so these man could get on or off this boat present and one witness says, “This witness who maybe an employer or someone comes in and tells under oath that this is so, there was a board and you have 10 witnesses who will say there is no board.

Isn’t this significant for you to know so you can tell your client that they have one witness who says it?

It’s an evaluation of evidence.

We’re not trying, in a discovery practice you’re not trying to get people to lie or to say things wrong.

Felix Frankfurter:

Yes, but it is more important that in two years later, he testified to the contrary or is uncertain, that you want to refresh his recollection, bring him back to what he testified two years before.

Harold A. Liebenson:

He has number one, he has the transcript with which to read as to what his testimony was.

Felix Frankfurter:

Yes.

But you — all I’m saying, like Justice Whittaker, I’m entirely — as far as I’m concerned and I don’t suppose any other man in this Court wants to be convinced that pretrial discovery is important in litigation.

You don’t have to argue that to me.

Harold A. Liebenson:

Fine I’ll skip that part.

Charles E. Whittaker:

Well Mr. —

Felix Frankfurter:

But I do say that — that it’s an important tool also to keep a lie contemporaneous memory.

Harold A. Liebenson:

It’s valuable for that.

Charles E. Whittaker:

Mr. Liebenson.

Harold A. Liebenson:

Yes, sir.

Charles E. Whittaker:

Isn’t it true that we cross this bridge of whether this type of investigation is worthy years ago with the passage of Rule 26 under the civil rules.

Harold A. Liebenson:

Except it didn’t apply to admirality.

Charles E. Whittaker:

I know.

Charles E. Whittaker:

Now then, your problem is it seems to me, number two, one, if it’s good there, would it not feel the same beneficent office in admiralty.

Harold A. Liebenson:

Yes, sir.

Charles E. Whittaker:

And now next, has the Supreme Court given the power to take discovery depositions in admiralty cases.

Isn’t that your whole question?

Harold A. Liebenson:

That is a point of —

Charles E. Whittaker:

Now, you say that in discovery depositions, you may not use them at the trial.

Harold A. Liebenson:

I didn’t say that, sir.

I said the Mercado said that, but they may not be used as evidence at the trial.

Charles E. Whittaker:

Well, but commonly they are.

Harold A. Liebenson:

No, sir.

It cannot be.

The law — the — the —

Charles E. Whittaker:

Now let’s take on the Rule 26.

You served unnoticed to take depositions under Rule 26 in the civil case.

You can do some fishing in it, alright, but that testimony is still usable before the jury, isn’t it?

Harold A. Liebenson:

In — in law.

Charles E. Whittaker:

In law.

Harold A. Liebenson:

In law.

Charles E. Whittaker:

Yes.

Harold A. Liebenson:

But because there is a statute and a rule in law in which to base it.

Charles E. Whittaker:

Rule 26.

Harold A. Liebenson:

In admiralty, they don’t have it.

Charles E. Whittaker:

Well but this — well now but this Court has — the district judges said it under Rule 44, the local courts could adopt the local rules.

Harold A. Liebenson:

Right, sir.

Charles E. Whittaker:

And the local rules then adopt Rule 26.

So you do have it that way, don’t you?

Harold A. Liebenson:

Except they held it void in our decision.

Charles E. Whittaker:

The Court of Appeals did.

Harold A. Liebenson:

Yes sir and there is no Supreme Court case on it.

Well the Admiralty Rule also says that they can adopt local rule which is not inconsistent with the admiralty rule.

Charles E. Whittaker:

That’s right.

Harold A. Liebenson:

And this is —

And Mercado says that it isn’t.

Harold A. Liebenson:

Yes sir.

(Inaudible)

Harold A. Liebenson:

And the point, the point, the whole point, I think, is based on the analysis of the basis of some of these decisions and one is Rule 46, the Supreme Court Rule 46, and the de bene esse statute and the interpretation of Carpenter — Carpenter versus Winn of the meaning of the word trial.

Charles E. Whittaker:

Well all I mean to indicate was it seems to me your problem is not to argue whether taking of this depositions is good or bad, but rather it is whether the power exists.

Harold A. Liebenson:

Alright sir.

Really I what you to say (Inaudible)

Harold A. Liebenson:

Well, I wouldn’t say its force, I just say it doesn’t — it didn’t apply in our particular —

Under Rule 46 is subsequent (Inaudible) by the Court of Appeals, is it not?

Harold A. Liebenson:

Yes, sir.

To either case.

Harold A. Liebenson:

Yes sir.

Earl Warren:

Let us not I should state what my brother Whittaker said to you, a little differently.

He said the correction is whether this Court has given the District Court the power to order a pretrial discovery.

I should defer to put in not whether it has given it because plainly it hasn’t given it, but whether it has left it to them.

And the argument from my point of view that you have to meet is that this Court in 1939 in revising the Admiralty Rules explicitly took over a number of the civil procedure rules, but as the Second Circuit found, significantly didn’t take this one over.

Harold A. Liebenson:

And I’d say with the exception of the cases where many of the courts have said that Section 32 (c) infers the right and now I’ll give those in our analysis of the four sets of cases.

Felix Frankfurter:

I don’t need anything to be against you.

Harold A. Liebenson:

No, no.

Felix Frankfurter:

What I’m saying is that here is Judge Clark, who wrote an opinion even though it doesn’t go as far as one that assumes from reading, he does go at great length and with great particularly to his great regret to the conclusion that there is great significance that this rule of the Civil Procedure, Federal Rules of Civil Procedure, was significantly omitted when it did deal with cognitive rules which it included.

Hugo L. Black:

Do you know whether any rule like that has been submitted to this Court by the Judicial Conference or by others?

Harold A. Liebenson:

No, sir.

There was some – in one of the other briefs that we read, there was some discussion about the Maritime Law Association had some discussion about it and then we don’t — there was no information that we’ve been able to obtain.

Someone else may have it and we tried to get it and we couldn’t.

Now, the significance as to whether or not, Rule 44 applies — or whether Rule 46 applies and the de bene esse applies, I think should be taken into considerations.

In the first place, in Rule 46 to the Supreme Court, talks about in all trials testimony of witnesses shall be taken orally in open court unless otherwise provided.

Now, counsel in his brief has made much of this and this is why I bring it up.

Rule 46 applies to trials.

Harold A. Liebenson:

De bene esse also applies to taking evidence for trial purposes.

In the Carpenter versus Winn case, this Court held that trial does not include the pretrial matters or matters preliminary to trial.

The purpose I bring this up is this.

If we were trying to take a deposition rule for evidence, Rule 46 and the de bene esse statute would apply.

However, where we take a pretrial oral discovery deposition, which is not used as evidence but is a matter preliminary to trial, we are in no way talking about a trial or we are talking about evidence for a trial.

What we are talking about is a discovery procedure which does not affect any substantive right.

And as long as it doesn’t affect any substantive right, then we know that we do not need a special statute or a special power and the Court then has the right to take it under Rule 44 in 2071 and 2073.

Now, of all the cases that have been decided, we have categorized them into four branches.

The first, the cases decided prior to there being the local rule are where a local rule was not taken into consideration.

In those cases, counsel cites three cases; one the Mulligan case, two the Mercado case and three the Kelleher case.

Now, on the Kelleher case which was in 1950 and after the others, the judge who wrote the decision in that case denying the right for an oral deposition became the judge who wrote — headed the committee for Rule 46 which is now their local rule and which is followed to this day in the practice.

All these have been Southern District New York cases that counsel has cited.

In the second category, decisions basing the right to take the pretrial oral discovery depositions because of Admiralty Rule 32 (c), we cite the Brown versus Isthmian, the Bunge, the Ballantrae, and the Galperin cases which appear in our brief.

In this case — in this situation, the judges took the attitude that Section 32 (c) written as it was has sufficient basis to infer the right to take oral pretrial depositions.

In the first group of cases, there was no local rule involved.

What does judge recommend (Inaudible)

Harold A. Liebenson:

That was the first case in which he held that if the Court did not have a rule and did not have the right — if the Court did not have a rule, it did not have the right to order oral pretrial discovery depositions.

That was the first one.

Then the Mercado came right after that.

Tom C. Clark:

From what place?

I haven’t yet understood.

Do you derive — you think the local court derives authority to promulgate the rule of this connection?

Harold A. Liebenson:

Under 2071, which Congress gives the right to the Supreme Court and the local courts to make the rules and 2073 which are not inconsistent with the statutes or the Supreme Court rules — the Supreme Court has made Rule 44, which says in effect —

Hugo L. Black:

You get it from Rule 44?

Harold A. Liebenson:

Yes, sir, the Admiralty Rule 44.

Tom C. Clark:

I maybe wrong but I have a recollection of the time that this matter was presented to this Court by a number of the — members of the Admiralty Bar and it was passed.

We take up rules permitting to a point and finally decided not to do so.

Charles E. Whittaker:

I think they should.

Tom C. Clark:

Do you know anything about that?

Harold A. Liebenson:

No, sir.

Harold A. Liebenson:

I know that there was a meeting some time ago and I heard that there was an appointment or possible appointment of committees to revise the Admiralty Rules but as to why they did it, I don’t know sir.

I don’t know the answer to that.

I do know that under Rule 44, you have the — the local courts have the right to do it and the basis that I have —

Tom C. Clark:

But you have the problem there of whether or not it’s in conflict.

Harold A. Liebenson:

In conflict with what sir (Voice Overlap)

Tom C. Clark:

Either by the — either by the rules that have been adopted here, the rules that have not been adopted but it have been presented, I should think.

Harold A. Liebenson:

This — the reason I say it is not in conflict and not inconsistent is because in the making of the local admiralty pretrial discovery rule, the Court is not involving any substantive right.

All the Court is doing is trying to regulate their practice because this occurs before the trial and is preliminary to the trial.

Tom C. Clark:

I can’t.

I don’t quite understand, never had pretty understood the difference between what’s substantive and what’s procedural?

Harold A. Liebenson:

Well —

Tom C. Clark:

This is a pretty important thing?

Harold A. Liebenson:

Yes, sir.

Tom C. Clark:

I’m not saying yes to this.

I mean the point I gave you.

Harold A. Liebenson:

No, I —

Tom C. Clark:

It’s particularly important, I should think if (Voice Overlap) to give it a name that was intended to review such importance to the litigants.

Harold A. Liebenson:

In decisions — in the decisions, they hold that you cannot enlarge a right that isn’t given to you by Congress or by the legislature.

And if it applies to the trial, the Courts have held that the trial — the fact that it applies to trial means that it is a substantive right and it should — there should be a statute or a provision made to give the Court the right to make the rule where you have the situation of a — if only applying to the regulating of the practice.

In other words, where it happened before the trial, a matter preliminary to the trial, then it is a procedural aspect of a case because it doesn’t affect the trial.

It doesn’t affect their rights at the trial.

Tom C. Clark:

I’ve always thought of it is having a very important effect on the trial and being very closely related to it.

Harold A. Liebenson:

Well, evidence deposition — if you take an evidence deposition, you are taking it would — you would need a requirement because you’re taking evidence deposition for a trial that’s in substitute of a witness taking the stand.

That is not our situation.

Charles E. Whittaker:

However, it substitutes the discoveries but they are (Inaudible)

Harold A. Liebenson:

Except sir, assume — assume that the party left the country or assume that the party died, you could not utilize that as evidence in the admiralty cases because you have no power to do so.

If the party — if the party lived and made an inconsistent statement, you may use one part of it for impeachment purposes and that isn’t the evidence.

Charles E. Whittaker:

How could you say (Inaudible)

Harold A. Liebenson:

No, sir.

No, I don’t think so.

Harold A. Liebenson:

I feel that —

Tom C. Clark:

In a trial?

Harold A. Liebenson:

It de — doesn’t it — doesn’t it depend, sir, upon what is affected.

You could have 25 inconsistencies in a trial and not have it effecting outcome of the trial. You could have only one.

Tom C. Clark:

How many have — have many of them there.

Harold A. Liebenson:

I know sir.

Tom C. Clark:

But it’s very important to get affected by —

Harold A. Liebenson:

Right, sir, and you can have one inconsistency and that could — that can affect your whole trial.

For instance, one of your clients doesn’t tell you, let’s say, about a past criminal record or something and they testify they didn’t have it.

Well, this has affected many trials.

There are many, many — but it depends on the inconsistency and as to the effect it has on the trial.

Tom C. Clark:

Are you asking the improvement of a rule which simply permits questions to be asked and not litigate, they have no benefit from it at all?

Harold A. Liebenson:

I think, sir, that if you’re getting information, the litigants are getting benefit —

Tom C. Clark:

I accept that.

You couldn’t use it to contradict or you couldn’t use it for anything else?

Harold A. Liebenson:

You can use it to contradict because then you’re not — this is not evidence but you could not use it as evidence in a case.

Charles E. Whittaker:

(Inaudible)

Harold A. Liebenson:

Yes, sir.

It’s just like they wrote something else out and you could just pick up any statement against them.

Felix Frankfurter:

You can’t use it as part of your case —

Harold A. Liebenson:

Right, sir.

Felix Frankfurter:

— but you can destroy the other fellow with it.

Harold A. Liebenson:

Right, sir.

Felix Frankfurter:

If the — the other fellow offers then as a witness.

Don’t you take a lot of depositions of people who never appear at trial —

Harold A. Liebenson:

Yes, sir.

Yes sir, we do —

William J. Brennan, Jr.:

I know that you use the deposition before them that you take on discovery as leads to other information in preparing your case or preparing against the defendant and the other fellow’s cases.

Harold A. Liebenson:

Yes, sir that’s all (Inaudible)

William J. Brennan, Jr.:

And you never call upon it and to use it or impeach or otherwise unless they call him as a witness and then he testifies.

Harold A. Liebenson:

That’s right, sir.

William O. Douglas:

Well sometimes you have take the depositions and you may drop the whole thing.

Harold A. Liebenson:

Well, that happens too, very often.

Charles E. Whittaker:

Well to a point (Inaudible) if he wants to.

Harold A. Liebenson:

Except that you also have the rule that if you don’t use it, they can use it.

Charles E. Whittaker:

Except for these (Inaudible

Harold A. Liebenson:

I think so, sir. I think so.

Charles E. Whittaker:

(Inaudible)

Harold A. Liebenson:

Except that I still say that the local courts have the power to do so.

Charles E. Whittaker:

Well that’s a matter of (Inaudible)

Harold A. Liebenson:

But the — all the — every district that I read is the 90 or more presented above the admiralty practice in many districts like in Nebraska and that, and though they have there, Nebraska may be, there are no Admiralty Rules.

It all depends upon it.

It — it is the rule — the local rules that arose from the — because of the necessity of —

Tom C. Clark:

But they’re not uniform, are they, in the way —

Harold A. Liebenson:

Most of them.

Tom C. Clark:

You said you can make out of them in the manner in which you can take them and so forth.

Harold A. Liebenson:

Most of them are uniform except they’re not verbatim.

The effects are the same.

Charles E. Whittaker:

(Inaudible) and this matter subsequent to that and the district courts found the (Inaudible)

Harold A. Liebenson:

Well, I think that some district courts have followed local rules in addition to 26.

Charles E. Whittaker:

They have not followed the rules.

Harold A. Liebenson:

Well this is — none of this is in conflict with it.

I mean at no time this is in conflict because you’re taking oral depositions, there is not — it’s not in conflict with any Supreme Court rule.

It’s not in conflict with any statute unless you did it by — if you did it as a deposition for evidence, then you’d be in conflict with the de bene esse and we say you can’t do it for that.

Charles E. Whittaker:

(Inaudible)

Felix Frankfurter:

Your claim here is really for a decision like Judge Fee in the Dowling case, is it?

Harold A. Liebenson:

No, sir.

In the Dowling case —

Felix Frankfurter:

The Dowling —

Harold A. Liebenson:

— he said — Judge Fee says that you have the right to take as a matter of right.

Harold A. Liebenson:

Ours — I say — I say, it says under Rule 44 that the local courts have the power as well as the right.

This is an addition to it, sir.

Felix Frankfurter:

Didn’t they have a rule in Pennsylvania?

Harold A. Liebenson:

No sir, not a bit.

Felix Frankfurter:

Or any of it, what you want is what he directed, the witness there said if used to be sworn.

If there is to be sworn because he said, “You have no power to direct or to secure pretrial testimonies”, is that right?

Harold A. Liebenson:

Yes, sir.

I was trying to point out three or four bases that you could use, rule that the deposition is good.

Felix Frankfurter:

He derived it from the body of admiralty law —

Harold A. Liebenson:

Inherit right, yes.

Felix Frankfurter:

— it must be so on.

Harold A. Liebenson:

Yes sir.

Felix Frankfurter:

You say that it depends on the local — has power to make local rules.

Harold A. Liebenson:

Under 44.

Felix Frankfurter:

Well you have — in order to prevail on that, you have to meet the question that Justice Whittaker put, namely, that since this Court issued rules of continental relevance, the continental — the continental uniformity and dealt with some aspects of the Civil Rules of Procedure and let this out, it didn’t mean that district courts have a Jacobs pattern under rule in one state and another and another.

The fact that now it so happened that several are very much alike, it doesn’t make a difference because as Justice Black pointed out they bear in the issue they make of it.

Harold A. Liebenson:

I think —

Felix Frankfurter:

I think you’re right about this.

I don’t see why you haven’t — you wouldn’t be right when you come here next time and say you can use it as evidence.

Harold A. Liebenson:

Well because, I’ve thought I explained because in evidence, you would need a statute as you have in the de bene esse statute to permit you to do it, but this you wouldn’t need it.

Felix Frankfurter:

What?

Harold A. Liebenson:

Because it’s when you’re using it at a trial and the other you’re using it prior to it for information.

Felix Frankfurter:

— my mind is so confident that I wouldn’t have to jump very far from saying I don’t need a statute for the second any more than for the first.

Tom C. Clark:

I don’t see how that will come before us.

I don’t state my view about it, but —

Harold A. Liebenson:

Sir.

Tom C. Clark:

— I don’t state my view about it now.

I don’t understand fully your argument there.

I don’t see how you would be justified according to our rule which gives all this power and it is a lot and a deposition is a big thing when you run all across the country to getting it and then to say that they couldn’t be used on both sides, like they do in the civil rules which seem to me to be of great draw instead of an advantage.

Harold A. Liebenson:

Except sir that —

Tom C. Clark:

And I — I could not say that it would be hard for me to construe a statute as authorizing any institution of local rule to make that limited use of it and then say they couldn’t — it didn’t have authority if they use it fully except the fact that —

Harold A. Liebenson:

Well I think that’s because of the cases that put that limitation on it.

Felix Frankfurter:

But those are lower court cases.

Harold A. Liebenson:

Sir?

Felix Frankfurter:

Those are lower court cases.

Harold A. Liebenson:

Yes, sir, those are lower court cases.

Felix Frankfurter:

And there are lower court cases against your (Inaudible)

Harold A. Liebenson:

That’s right, sir.

Earl Warren:

Mr. Hayes.

Edward B. Hayes:

I’m not going to read all this —

Felix Frankfurter:

(Inaudible)

Edward B. Hayes:

I think we need a little housekeeping to start with.

My learned friend states that after Judge Clark held in the Mercado case that the application of Rule 26 of the civil rules in admiralty was inconsistent with the statutes and the rules of this Court, but then six months later, he reversed himself and held to contrary, and that there was a right to take on all the depositions for discovery in admiralty.

I don’t have some offense with Judge Clark.

I have been before him.

This Court has law.

I think perhaps it maybe truly said of that wonderful gentleman that once he gets his teeth into an idea anybody who can get him out in six months is a miracle.

What Judge Clark held —

William O. Douglas:

Well he doesn’t have the monopoly on that.

Edward B. Hayes:

I beg your pardon sir.

William O. Douglas:

He doesn’t have the monopoly on that case, does he?[Laughter]

Edward B. Hayes:

Well no.

What Judge Clark held in the subsequent case was that where witnesses only had been required to appear, they have an adequate remedy by appeal from an order of contempt.

And that for that reason the Court of Appeals would not employ the extraordinary renting of mandamus or prohibition, citing this Court’s decisions as to the extreme standard of urgency that must exist for that extraordinary remedy where there is appellate interference with interlocutory proceedings of (Inaudible), stating that he did not see that this case complied with those standards and for that reason declining an interlocutory remedy and not holding for one second that he had retreated one millimeter from the views that he so clearly stated in Mercado.

Earl Warren:

That enlightens me a little bit on what – on what the distinction that Judge Fee made without passing on it between the requirements of a party as against the witness.

Edward B. Hayes:

I shall have more to say to that if I — as I go along.

My friend has stated that they have this rule throughout the State of New York.

That is not my information.

I am not a practitioner in New York.

I do not have that distinction, but neither has my learned friend.

Edward B. Hayes:

I am informed by able admiralty practitioners in New York whom I know well that there is no such rule in the Eastern District of New York and I know the Western District has specifically held that it would not be valid to make one.

The law in the Second Circuit is the law as declared by Mercado, and Mercado is followed by many of the judges in the Southern District of New York.

The Kelleher case for instance, the Erisco case follows it in the Eastern District, Ellis versus Browning is the case in the Western District.

I recall I am not certain for the case is only reported today nisi prius that Gulf Oil versus Alcoa was a Southern District case.

There exists an unseemly confusion in the Southern District of New York by reason of the fact that allowing witnesses to take an appeal from a contempt order, is not enough to maintain the orderliness of the judicial process at nisi prius and until the Second Circuit exercises its right and power to enforce its stated views of the law as declared in Mercado, that will continue and it was partly for that reason that the Seventh Circuit said there wasn’t going to be anything of that kind within the scope of it’s territorial jurisdiction.

My learned friend refers to a long list of District Courts, statutory courts of the United States, according to the ideas of legislative policy that have filled to them at different times and places have undertaken to make local rules upon this subject.

He refers to them as the cases around the coasts of the United States, but his list does not exhaust that geography according to my understanding of it.

You won’t try that kind of thing if you go to New Orleans or to many other ports.

Now I’m not going to debate with him the desirability or undesirability of a particular form of pretrial discovery.

It occurs to me with all difference to him that that is not his business and it is not mine and it’s not an appropriate matter for the judicial process.

Such considerations of policy are legislative matters and this Court has been appointed by Congress certain legislative functions to be exercised only in cooperation with Congress.

The rules must be submitted before they become effect — effective.

Felix Frankfurter:

Admiralty rule?

Edward B. Hayes:

Admiralty rules, yes sir, by Section 2073 of the new judicial code.

Furthermore, you could always have done it if you had wanted to under the revised statutes.

Ever since 1878, this Court has had the power to prescribe the mode of obtaining, discovering inequity and admiralty.

You have never done that.

I was interested in the question as to whether or not, this Court had ever been approached with such a suggestion.

My learned friend, according to his explanation unfortunately did not have access to the sources of information on that particular point.

That occurred in 1949.

Document number 328 of the Maritime Law Association of the United States, reports it.

It was raised here in the argument, it isn’t in my brief.

I’ll tell you what it says.

It says that certain gentleman and members of the bar came to this Court and they came from the Southern District of New York.

And they suggested a revision of the rules that, this was 1949, that would have allowed discovery depositions in admiralty.

And the committee reported to the membership of their association as follows and I quote “The Chief Justice, however, decided that the previous and present deposition practice under revised statute 863, 864 and 865 which are not repealed, was satisfactory and does not require restatement.

Hence, he did not send any report on a new Admiralty Rule to Congress.

Our suggested text has been withdrawn.

At this time, there is no Admiralty Rule pending or under discretion.

This position appears to us to be satisfactory.

Edward B. Hayes:

It leaves our admiralty practice unchanged.

Felix Frankfurter:

Am I wrong in recalling that the admiralty bar in its organized form was divided on this subject?

Edward B. Hayes:

The next page of the same document states, I quote again —

William O. Douglas:

Mr. Davis that —

Edward B. Hayes:

— several members wish the “discovery” rules broaden like the civil rules, others do not.

William O. Douglas:

What verses you read —

Edward B. Hayes:

I’m reading sir from the – a report to the Maritime Law Association of the United States.

William O. Douglas:

But the —

Edward B. Hayes:

The occasion to which Mr. Justice Black referred when — I beg your pardon?

Felix Frankfurter:

The date, the date.

Edward B. Hayes:

Oh forgive me I gave that, I didn’t speak loud enough, April 1949.

William O. Douglas:

Is that cited in your brief?

Edward B. Hayes:

Sir the question arouse in the argument only.

It is not cited in my brief.

I’ll certainly make it available to the Court if desired.

Felix Frankfurter:

I suspect the documents are in the possession of the Court.

Edward B. Hayes:

Your Honor I have a suspicion that they are.

William O. Douglas:

Where did you get that?

Edward B. Hayes:

I got that sir as a member of the Maritime Law Association of the United States.

William O. Douglas:

And what is the ni —

Edward B. Hayes:

And also a member of its committee on the Admiralty Rules I may say, if you don’t mind the personal reference.

Tom C. Clark:

Was that at the time that the Court sent inquiry with the different circuits as to the — as admiralty business asking them to sound out the views of the bar.

Do you know?

Edward B. Hayes:

I’m not prepared to answer that question categorically from recollection.

What I have before me I can — I can quote.

William O. Douglas:

What is the name of that report again?

Edward B. Hayes:

Report of the committee on revision of Title 28 U.S. Code.

William O. Douglas:

Thank you.

Tom C. Clark:

Is that the association committee or –?

Edward B. Hayes:

That’s the Maritime Law Association sir, not the committee of the Judicial Congress.

Tom C. Clark:

Title 28, you say?

Edward B. Hayes:

No sir.

Tom C. Clark:

Report of committee on —

Edward B. Hayes:

Report of the committee on the revision of Title 28, U.S. Code.

Now as I said, I am not going to engage with my friend in a debate on whether admiralty oral deposition discovery is a good idea or not.

I point out that it has been explicitly decided by this Court that it isn’t a good idea.

This Court may at anytime change its mind, but it hasn’t.

If it changes its mind, it will change it, one assumes, in the way appointed by Congress for the exercise of its legislative function rather than as part of the judicial process.

This Court having already, in an earlier case cited in my briefs, rejected a suggestion coming from none other than the Attorney General of the United States in an opinion by the Chief Justice that a rule which the Attorney General regarded as nationalistic in admiralty law, the — rejected in favor of the civil practice in the exercise of the judicial function, and the reply being that is not the judicial function.

The judicial function is to know the law, to find the law, to enforce the law, but the legislative function is to make the law.

And when this Court acts under the legislative function that Congress has committed to it in the manner that Congress has prescribed, that’s one thing but not in the exercise of a particular case, not to change the rules in the middle of the game, if that isn’t the dirty word when discovering, discussing discovery.

It’s inconceivable that counsel should make such a distinction as he undertakes to make, I say it’s inconceivable, I retract and apologize.

Counsel has undertaken to make a distinction between taking depositions on the one hand and the use of depositions on the other and he has undertaken it under the Mercado case.

What the Mercado case held was based on some hard law according to what His Honor, Judge Clark, called the ordinary ground rules of judicial decision.

And that law was — that the existing rules of this Court and the existing statutes to which the de bene esse were inconsistent with what was attempted to be done in deposition discovery practice in that case.

Now in that case to be sure, they had used the depositions below.

And that is something that is covered by the de bene esse act.

But equally and in the first section of the de bene esse act, the taking of depositions is covered, covered by a carefully considered elaborate quote which says “Just when you can take depositions,” that statute applying in admiralty.

You can take some them when a witness resides more than a thousand, a hundred miles in the place of trial, bound on the voyage to seas, he is bound out of the countries or something of that kind, in those circumstances you can take, but you take them high, you take them de bene esse.

What does that mean?

De bene esse is defined by Bouvier.

The examination of the witness de bene esse takes place where there is danger of losing the testimony of an important witness from death by reason of age or dangerous illness, or where he is the only witness to an important fact.

In such case if a witness be alive at the time of trial, his examination is not to be used, but you can’t take it unless there’s danger of losing it.

The examination in certain cases, the courts will allow evidence to be taken out of the regular course in order to prevent the evidence being lost by the death or the absence of the witness.

This is called taking evidence de bene esse.

Now it is the de bene esse acts that are preserved by Congress for admiralty and for admiralty alone, and to take the witnesses’ testimony for any other purpose or under any other conditions and those that are prescribed by the statute of the United States — is inconsistent with the statutes and since when could District Courts of the United States make rules that changed federal procedural statutes.

My friend says that it isn’t inconsistent because it doesn’t affect a substantive right.

I’m not prepared to engage in a semantic fencing match as to the meaning of the words, procedure or substantive.

I prefer to go directly to the substance of the situation and that is that where you have a court say to a man, drop your ordinary affairs, go to a lawyers office, sit there as long as we think we want you too or have a use for you, but answer everything he asks you.

And so that lay not only with reference to framed issues but if he thinks he can maybe find out something that would equip.

Edward B. Hayes:

When you do that to a man, you invade what from the time of Coats institutes has been known as common right.

I don’t care whether it’s procedural or whether it’s substantive, that’s rough.

Charles E. Whittaker:

Mr. Hayes.

Edward B. Hayes:

Yes sir.

Charles E. Whittaker:

Could you please – might I ask you please sir, would it be my —

Edward B. Hayes:

Forgive me.

Charles E. Whittaker:

Would it be more — would it be more rough to use the word in an admiralty case than it would be in a civil case in a law side?

Edward B. Hayes:

Your Honor —

Charles E. Whittaker:

Or what do you have to say about that sir?

Edward B. Hayes:

I have a good deal to say about it Your Honor.

The first of which if you will permit me is this that you are asking me a question on which I should like to hold fort for a long time at a legislative hearing.

There is a difference between law and equity on the one end and admiralty on the other right in this respect.

I would love to go into that, but I submit that as Your Honor so permanently pointed out to counsel who preceded me, the question is not whether it’s a good idea but as this Court felt and found it to be a good idea and authorized it.

Charles E. Whittaker:

Now whether this Court found, is it a good idea or not has this Court authorized the — such rule?

Edward B. Hayes:

Well counsel substantially concedes that you haven’t done it.

He didn’t know about this occurrence in 1949, even not knowing that as he explained.

He substantially conceded that you hadn’t done it.

Felix Frankfurter:

The question isn’t whether we’ve done it.

It is a quite question is whether it is forbidden to the District Courts to do it, in lieu of this Court having explicitly authorizing it, a manifest statement of the issue.

Edward B. Hayes:

Well a district court’s — do District Courts require, I’m not trying to mince with Your Honor but I do think it’s important to distinguish between the means by which District Courts acquire power.

District Courts would not acquire power I suppose by non action of anybody.

District Courts must have affirmative power given to them, that’s obvious, I apologize for undertaking to make the distinction coming directly to what Your Honors I’m sure meant in asking is this action by the District Court authorized in the absence of any statutory authority and — which is substantially conceded it doesn’t have now by counsel.

Then the next question is, is this statutory authority?

Felix Frankfurter:

Well there — you said you would agree that there are rules which District Courts may promulgate for the conduct of admiralty litigation that clearly would not be in conflict with the promulgated admiralty rules of this country of 1939.

And then the question is, is this one of those or is it — I didn’t mean to imply, if I said anything that —

Edward B. Hayes:

I know I apologize for it I guess, I understand.

Coming directly to that which of course is the next obvious step in the discussion, counsel relies on what.

He relies on Rule 44.

What does Rule 44 say?

Rule 44 says that in matters not provided for by these rules, that’s number one, the District Courts can regulate their practice provided their regulations are not inconsistent with the rules of this Court.

Edward B. Hayes:

Now first thing I wish to point out is that the two limitations, first, that the matter must be one not provided for by this Court’s Admiralty Rule.

But even in matters not provided for by this Court’s Admiralty Rules, it is possible for a District Court to strike off in some directions.

It would be inconsistence with the policy of the rules of this Court and therefore the second proviso is that there are two distinct limitations upon the rule making power of the District Courts.

That is Rule 44.

That is not a statute.

That comes as a rule.

That’s a rule of this Court and certainly this Court did not undertake to exalt the power of District Courts beyond those powers which the Congress which created them had given.

And therefore, we must find behind that rule a statutory authority and that statutory authority is the statutory authority presumably that existed when Rule 44 was adopted which was before the current Judicial Code.

Under a statutory situation which expressly, explicitly and in terms confided to this Court the power to prescribe the mode of taking discovery to the District Courts.

Indeed the intention of Congress by making that provision one of giving power to this Court was so clearly designed to create uniformity, national uniformity of practice in that regard, that it is conceded of all people even by Judge Fee and referred to by petitioners in their brief.

And when Congress passed the new Judicial Code, it said that this Court — the constitutional court and the only one and all courts, the statutory courts could do what, for they could make rules for the regulation of their business.

But such rule shall not be inconsistent with rules of practice prescribed by the Supreme Court.

This is no housekeeping rule.

This is a rule of vital importance as evidenced by the fact that under the statutory situation on which- – under which Rule 44 was adopted, the power to prescribe them to taking discovery was given to this Court, the only Court whose rules operate generally.

As evidence to gain by the fact that this Court has over the years, ever since 1844 specifically legislated as it had the power to do by these national rules with respect to the mode of taking discovery.

Tom C. Clark:

How is it done now?

Could you tell me in just — would it interrupt you to tell me and very briefly just how you do get your information now?

Edward B. Hayes:

In admiralty?

Tom C. Clark:

Yes.

Edward B. Hayes:

I’ll do my utmost on some now.

First you file a narrative statement of what happened that’s your libel.

You don’t file a complaint that says the defendant ran over me and I want a $100,000 the way you do under the civil rights.

You set out the facts and the defendant is entitled to insist that that’s where you stay within those boundaries, so he knows the facts on which the action came about.

Tom C. Clark:

Can he file — can he file the interrogatory?

Edward B. Hayes:

Yes sir, he can then file interrogatory.

Tom C. Clark:

And can you file an interrogatory?

Edward B. Hayes:

I can file interrogatories.

And the rule is specific as made by this Court to those interrogatories are to be in writing and are to be answered in writing.

Indeed this Court adopted that rule in 1939 eliminating from the Admiralty Rules, it’s Rule 31.

Tom C. Clark:

Are they verified — do they have to be verified?

Edward B. Hayes:

They do sir.

They have to be verified by the party and his conscience can be searched to the utmost.

Tom C. Clark:

If he does not answer.

Edward B. Hayes:

If he does not answer, the Court may do anything to him including dismissing the suit.

Charles E. Whittaker:

(Inaudible)

Edward B. Hayes:

By asking questions.

Felix Frankfurter:

In the (Inaudible) question or not.

Edward B. Hayes:

By asking him questions on interrogatories, Your Honor.

Charles E. Whittaker:

On interrogatories.

Edward B. Hayes:

Yes.

Felix Frankfurter:

Up to 1913 that was substantially the course of procedure in equity suits until oral testimony was introduced.

Edward B. Hayes:

I’m interested that to the fact – in effect that Your Honor refers to equity.

One statute is 88, the handy work of the founding fathers provided that testimony should be taken in open court, in admiralty, and in equity as that common law.

There went all the ecclesiastical material.

Why?

It doesn’t work to have trial by deposition without a Court there.

They have tried it.

They’ve tried it a long time.

They found it (Inaudible).

In 1802 in equity, there was a statute that said that if either party wanted to, he could have it done by depositions, in equity, not admiralty.

So what did they do?

They went to work and they had deposition trials.

Until what, until 1861, the December term of this Court when somebody dug up that statute, one statute 88 that never had been repealed and this Court amended equity Rule 67 to provide that either party could require that all evidence should be taken in open Court except as provided otherwise by statute or by these rules.

Well that didn’t work.

Either party can require the judge to do it.

The judge is going to decide his case on the facts that he want to sit there and listen to all evidence.

That didn’t work.

And in –I think it is 11 or 12, federal rule decisions, you will find that eloquent description by a practitioner who practiced them to those rules as to what went on in one of Judge Clark’s symposiums on discovery.

Now what did you do?

In 1912, seeing that that didn’t work, you passed a further amendment to Rule 67, the one to which I referred.

Edward B. Hayes:

And it was pretty hard to get district judges to set those cases for trial.

You prescribe the order in which they were set for trial.

The judges wouldn’t do it and in one of the cases cited in my brief to the lower court it’s printed in the record.

You have to issue your own writ of mandamus to make it.

Judges don’t like to hear evidence in district courts.

We tried it.

We tried it in admiralty.

We tried in equity before the United States was formed.

We rejected it in 1789.

Then we tried it by inadvertence again in equity in this country and it worked out the same way.

We rejected it in 1912 and when they tried to suggest the same thing to this Court in 1949 after more than 10 years experience with that kind of business under the civil rules of — Federal Rules of Civil Procedure tried to introduce it — reintroduce it in the admiralty, this Court said no.

Well was that an accident?

Was that inadvertence?

What this Court mean to be with the District Courts to do what this Court had refused to do, to create the Joseph’s “pattern” to which Mr. Justice Frankfurter referred to be persuaded by considerations of policy which this Court had rejected.

Well if it did, why did not this Court leave to District Courts all the other methods of discovery?

In admiralty, we’ve had interrogatories, a necessity for narrative pleading in answer.

In 1939 this Court did not leave this matter of discovery to local judicial legislation.

It adopted in haec verba the civil rules — the civil rules for discovery of documents for requiring admissions, for inspection of the person.

Several of the rules of discovery from the civil rules adopted in but not Rule 26 for deposition discovery.

For when that rule succeeds in doing what it was hope to do, namely, get parties to go off and try their cases without bothering the judge.

Then you had what?

Then you had trial by deposition all over again, we tried that.

Why do we have to learn over again in every generation that the plausible errors of the past are only what they were before?

Tom C. Clark:

Mr. Hayes, may I ask you a question?

Edward B. Hayes:

Yes sir.

Tom C. Clark:

It hadn’t been discussed the practical part of it, I assume.

Are you an active practitioner now?

Edward B. Hayes:

I can call my friend to witness sir, I am.

Tom C. Clark:

I’m trying to find out how this works.

Suppose now you had this rule that the deposition that you are talking about, you were in Chicago, the other side notifies you that they have a witness in California.

Tom C. Clark:

Do you have to go there or have somebody there to represent you to take the evidence of that witness?

Is — what’s the provision with reference to call?

Edward B. Hayes:

May I give Your Honor an example right straight out of the book?

An Illinois ex — either exporter or importer, I don’t recall which had some goods that were damaged by a vessel.

Well the vessel stopped only on the east coast, the Southern District of New York.

So what did he do?

He filed the characteristic action in admiralty and the action in rem which must be brought where the vessel is.

They had this rule in the Southern District of New York and what did they do?

The Court said there’s nothing in the affidavits that would indicate that anybody in Chicago knows a thing about this.

But the respondent says that he wants to take the deposition for a discovery of the people in Chicago to see if they do and so what?

So you proctor for this libelant must bring his managing officers here to New York and pay their expenses yourself or else if you prefer, you can pay the expenses of counsel for the respondent to go Chicago because discovery deposition is so much better than interrogatory deposition.

One case referred to in five federal rules decisions and the symposium by one of the counsel in the — the case begins that – you held that lawyers didn’t have to produce his own work product, that’s Hickman against Taylor.

That lawyer told of cases in which he had been required to bring all his witnesses from farm states and sit them down in the office of counsel for the other section.

That isn’t going to work in admiralty.

Crews go all over the world.

Vessels go all over the world.

If there is a problem as to the possibility of imposition by the use of depositions and every advocate of those rules admits there is such a problem.

That problem is multiplied by a very high factor when you try to import it into Admiralty.

I can understand why you might not have wanted that rule in Admiralty.

I know you did not and I don’t think you meant to authorize District Courts or that Congress meant to authorize them to create a crazy thought of practice with respect to anything so vital as discovery.

Right or wrong, if it should be done, it should be done nationally.

Earl Warren:

Mr. Hayes, what do you to say about counsel’s statement that this rule does exist in all these important ports like New York, Pennsylvania, and the Gulf Coast though, and out in the Pacific Ocean?

Do they or do they not?

Edward B. Hayes:

My understanding is that they do not exist in the Eastern District of New York.

They do exist in the Southern District of New York.

I do not understand that they are uniform.

I understand further that there are many other Courts — forgive me Your Honor.

Earl Warren:

I was just going to say by not being uniform, you mean not uniform in express verbiage or no —

Edward B. Hayes:

No I mean uniform in effect.

Earl Warren:

In substance.

Edward B. Hayes:

In effect.

Earl Warren:

In substance.

Edward B. Hayes:

In effect.

Earl Warren:

Yes.

Edward B. Hayes:

In effect.

I don’t see how he can talk about not using a deposition when you use it to impeach the other fellow.

Rule 26 says explicitly that that’s a use of depositions.

Rule 26 says explicitly that testimony, this is a civil rule, testimony maybe taken either for use in evidence or for discovery.

What does the Admiralty Rule say?

Admiralty Rule 46 says testimony shall be taken in open Court except as otherwise provided that there he stopped.

It doesn’t stop except as otherwise provided by statute and that statute is the de bene esse act.

Earl Warren:

May I just — just make this one suggestion.

Counsel is going to furnish us with the list of the — of the rules in these various jurisdictions together with the numbers of the rules.

Felix Frankfurter:

We couldn’t get the text of the rules.

Earl Warren:

I beg your pardon.

Felix Frankfurter:

We couldn’t get the text of the rules.

Edward B. Hayes:

I — I — Your Honor please, I can give you the source of it.

It’s in Benedict’s new book, the seventh edition in admiralty.

Felix Frankfurter:

That’s the provision.

Edward B. Hayes:

Yes sir.

And it includes the Eastern District of New York and gives the rule for 32 the same as–

Felix Frankfurter:

What is the effect now, Mr. Hayes?

You got it back?

Edward B. Hayes:

I can’t give you that because there’s many in this capital of law.

Earl Warren:

I was going to say, Mr. Hayes, if you disagree with the — with the statement in that regard, will you — will you file just a brief memorandum on it?

Edward B. Hayes:

Well I’m not going to quarrel with what Mr. Benedict says if there — I don’t have time to get that research but I will file a list of ports where they don’t exist if I may.

Earl Warren:

Yes.

Yes, that’s alright too.

Felix Frankfurter:

He said Louisiana and you explicitly said it’s not the rule in New Orleans.

Edward B. Hayes:

I was on the telephone no longer ago than last week with a very good friend of mine who was well known to some members of this Court who said that if you try to do that before and he named the judges who sat there, you’d be disapproved of.

Edward B. Hayes:

He didn’t put it that way but that is what he meant.

Felix Frankfurter:

Louisiana that excludes Louis — New Orleans is rather important.

Edward B. Hayes:

Sir, it’s the Western wherever New Orleans is, it’s the Western District Louisiana Rule 30.

Felix Frankfurter:

But what Court is that, Mr. Hayes?

Edward B. Hayes:

I don’t know sir.

Earl Warren:

The Western that would be —

Charles E. Whittaker:

Shreveport.

Edward B. Hayes:

Shreveport.

Yes.

Earl Warren:

Yes.

Charles E. Whittaker:

(Inaudible)

It’s the fifth — it’s the fifth or sixth (Inaudible) of 5 and 5 (a) of the new edition of that’s now called professor announced that the list of the rule to go out for the reason of the Court at that time.

Edward B. Hayes:

Yes, that’s true.

My associate says they aren’t complete because there have been other revisions taking place right now, but every one of these can’t remember rule number.

Earl Warren:

Very well, we’ll adjourn now.