
    COONEY v. GUILD CO.
    District Court, S. D. New York.
    March 26, 1940.
    Frank, Weil & Strouse, of New York City, for plaintiff.
    Putney, Twombly & Hall, of New York City, for defendant.
   HULBERT, District Judge.

Plaintiff served notice of the taking of the deposition of the defendant corporation by its president, and vice president and secretary. During the examination of the President he was unable to answer certain questions from memory. Plaintiff then formally moved for an order directing the clerk to issue a subpoena duces tecum for the production of books and records of the defendant pursuant to Rule 45(d), Rules of Civil Procedure for District Courts, 28 U. S.C.A. following section 723c. Such orders are ordinarily endorsed, ex parte, upon the subpoena duces tecum and the party or person served may apply to vacate the subpoena'or ask for alternative relief.

The only question presented upon this motion arises from the fact that plaintiff’s assignor, formerly employed by defendant, is now engaged in a competitive business and the production of the books and records sought might result in a disclosure of information and be used to the defendant’s injury. That objection is fully met by the proposal of the plaintiff’s counsel upon the argument and the motion is granted subject to that condition. Counsel should be able to agree upon an order containing a safeguard provision which will fully protect the defendant. Otherwise, settle order o-n notice.  