
    Before the Third Division
    April 20, 1965
    No. 69264.
    Robert M. Waggaman v. United States,
    protest 63/8272.
   Plaintiff’s motion for the issuance of a commission denied. The following memorandum accompanied the order denying motion for a commission :

Donlon, Judge:

Rule 21 requires, in support of a motion that a commission issue to take testimony by deposition, that the moving party show, inter alia, the facts which that party espeets to prove by the testimony of a named witness or witnesses.

The sole fact which plaintiff states he expects to prove by answers of Mr. W. S. Bell to interrogatories in Scotland, would appear to be what the date is when ships figureheads, subject of this litigation, were produced. This we may deduce from a statement in the affidavit of E. Thomas Honey, Esq., in support of the motion for a commission. But we are not told what the fact is as to date, which plaintiff expects to prove by Mr. Bell’s answers to interrogatories. If the date is subsequent to 1830, obviously Mr. Bell’s testimony is valueless.

Mr. Honey also does not say what facts he expects to prove in support of Mr. Bell’s asserted qualification to give expert testimony as to artistic antiquities; or as to what facts, other than the unspecified date, he expects to prove in support of the claim that these figureheads are loth artistic and antiquities.

The court should not issue its commission to take testimony abroad, involving considerable delay in the disposition of suits, without the disclosure by the moving party which rule 21 requires. Moreover, where (as here) the fact expected to be proved by such testimony does not suffice to support the protest claim, good judicial administration indicates the need to know how the party seeking the deposition expects to complete its case.

This importation was made in June 1960, nearly 5 years ago. It seems clear that plaintiff should now move with dispatch to prosecute its suit, whatever may have been the excuses for prior delay.

We deem it not necessary, in view of our denial of plaintiff’s motion, to consider here the cross-motion of defendant for leave to postpone filing of its cross-interrogatories.

Denial of plaintiff’s motion for a commission is without prejudice to renewal thereof on a proper showing, under rule 21, of the facts to be proved.  