Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
In his complaint filed in the District Court, plaintiff alleged, in count I, inter alia, that on January 14, 1953, while employed as a brakeman for the defendant The Grand Trunk Western R.R. Co. (hereinafter referred to as Grand Trunk), he was injured while riding on engine 7921, as it was being operated at or near the junction of track 33 and one of the lead tracks to said track 33 at the south end of the out-freight yard of Chicago, Rock Island and Pacific R.R. Co. (hereinafter referred to as Rock Island), and that as a result of the alleged negligence of Grand Trunk, said engine was caused to collide with a flatcar of Rock Island, crushing plaintiff between said engine and car; wherefore he brought action under the Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq.
In count II he charged Rock Island with negligently placing or spotting, or projecting or moving said flatcar onto said lead track, whereby he was crushed and injured between said engine and said car; wherefore he sues Rock Island for his alleged damages.
On July 9, 1953, Rock Island's answer was filed, denying, inter alia, that it was negligent.
Plaintiff filed a motion under Rule 34 of the Federal Rules of Civil Procedure,*fn1 for the entry of an order requiring Rock Island to produce for inspection and copying or photostating, "all statements, either signed or unsigned, and given in the presence of a shorthand reporter" by John J. Armin, William Patrick O'Brien, Clayton William Reed, John Donovan, Paris C. Brock, Richard Dye, William Bobbie Brewer, Milton Scherrick, and Edward Van Nugtren, and "any statements taken from other persons who witnessed the accident * * * or who have knowledge of the placements of flat car No. R I 91439 on track 33, or the braking or blocking of said flat car, or the spacing or coupling of any of the cars on track 33 were before or after this accident."
At the same time an affidavit, by one of plaintiff's attorneys, Robert O. Rooney, was filed, setting forth that during the plaintiff's taking of depositions of various employees of Rock Island, it was developed during the cross-examination of "some of these witnesses" by the attorney for Grand Trunk that they "had, in fact, given signed statements within a day or two of the accident," (although they had under questioning by plaintiff's attorney denied giving signed statements) "which statements contained material and important information and was contradictory to the testimony which the witnesses had previously given when interrogated by affiant as attorney for the plaintiff * * * the material contained in these statements is believed to be very important and necessary, if all of the evidence concerning the manner in which this accident happened is brought to the attention of the jury, and that the plaintiff receive a fair trial."
Pursuant to leave of court, Rock Island filed on December 21, 1953, objections to the foregoing motion, and thereby urged, inter alia, that "there is no showing of good cause for the production of any of the alleged documents." On December 23, 1953, plaintiff filed a motion, which in effect amended the prior motion by adding paragraphs 10 and 11, adding Exo and Veltick to the nine names originally stated, and Rock Island was given leave to file additional objections.
The court having striken that part of the motions pertaining to statements other than those of the specifically named persons, Rock Island, on January 4, 1954, filed additional objections on the grounds, inter alia, that (1) plaintiff had taken the depositions of all of the persons listed; (2) there was no showing of good cause for the production; (8) there was no showing that the persons listed are not readily available to plaintiff or that plaintiff has been unable to question said persons or has used or exercised reasonable diligence to do so, or that any other special circumstances exist; (10) or that they were necessary to enable plaintiff to prepare his case or that they will facilitate proof or aid in the progress of this cause; (11) "there is no affirmative showing that any special circumstances exist which justify this attempt by the plaintiff's attorney to take advantage of the defendant's industry and diligence in preparing its own case for trial;" and (12) "the affidavit attached to plaintiff's original motion, which was identical with the present motion except for paragraphs 10 and 11 thereof which are new, is inaccurate and incoherent and fails to affirmatively allege or set forth any facts justifying the production of any of the alleged documents listed in said motion. Said affidavit contains only the unsupported conclusions and opinions of the attorney for the plaintiff, and is totally insufficient in law to support said motion.* * *"
On January 8, 1954, plaintiff filed a reply to the objections of Rock Island. Among other things it stated that the motion plaintiff presented on December 17, 1953, was made "subsequent to the taking of depositions of" Rock Island "employees and after it was determined in the depositions that said documents were actually in existence and in the possession of" Rock Island; that "the documents were used by the attorney for" Grand Trunk "in laying a foundation for impeachment of the various witnesses," the documents being statements signed by the witnesses, and taken by the Rock Island two days after the accident "which statements were impeaching of the testimony given by the witnesses in response to interrogatories propounded to them by the attorney for the plaintiff; these documents had been given to" Grand Trunk by Rock Island; they "are contradictory and impeaching on vital and material issues in the case and are thus relevant"; "* * * it affirmatively appears in the testimony at the depositions that the statements are impeaching concerning the placement of cars on track 33 both before and after the accident, the bracing of the cars, and other relevant matters; it also appears in the depositions that the various witnesses were not shown their statements prior to the taking of their depositions by the plaintiff, and they were not permitted to refresh their memories from the said statements; when these witnesses had been asked by the attorney for the plaintiff whether or not they had given statements, each of the witnesses denied that they had; the motion and affidavit affirmatively show that the statements sought by the plaintiff herein are impeaching of the testimony given by the witnesses on a direct examination and thus are necessary to enable this plaintiff to prepare this case, that they will facilitate proof and that they will aid the jury in arriving at the truth of the matter sought to be hidden by" Rock Island.
On January 19, 1954, after a hearing the court entered an order directing Rock Island to produce the statements of the eleven persons mentioned, in accordance with the two motions of plaintiff.
On February 4, 1954, plaintiff filed a motion for an order directing Rock Island to show cause why it should not be held in contempt of court for its failure to comply with the order of January 18, 1954. At that time there was filed the affidavit of Mr. Rooney alleging that Rock Island produced the statements of only three of the persons named, i.e., Brewer, Van Nugtren and Scherrick, and refused to produce the other statements. On the same day the court entered an order for a rule to show cause, and gave leave to file counter-affidavits.
On February 8, 1954, Rock Island filed an answer to the rule with an affidavit of Charles F. White, its attorney. In the answer, it stated that it had produced the statements signed by Brewer, Scherrick and Van Nutgren, that it did not have in its possession statements "within the meaning of the order," of Reed and Veltick; that the order of January 19, 1954 was an improper order, "was not supported by sufficient showing of good cause as required by Rule 34, constituted an abuse of discretion by the court, and was grossly in violation of" Rock Island's "fundamental rights." Defendant incorporated by reference all objections previously filed by it.
Affiant White said that he is attorney for Rock Island and that Rooney's affidavit "is inaccurate and misleading;" and set forth, inter alia, that defendant had produced copies of statements signed by Brewer, Sherrick and Van Nutgren which were those used by Grand Trunk counsel at the depositions of these three men; that the other statements which the order required defendant to produce were not used to impeach or cross-examine the witnesses at their respective depositions; that Rock Island does not have in its possession any statements by Reed or Veltick; that plaintiff has taken the ...