299 F.2d 256
MADISON-LEWIS, INC., and Gustave Adolph Godinez,
Petitioners, for a Writ of Mandamus
Hon. Lloyd F. MacMAHON, U.S. District Judge, Respondent.
United States Court of Appeals Second Circuit
Argued Feb. 5, 1962.
Decided Feb. 13, 1962.
Daniel A. Novok, New York City, for petitioners.
Robert M. Morgenthau, U.S. Atty., Southern Dist. of New York, New York City, for respondent.
Before LUMBARD, Chief Judge, and SWAN and WATERMAN, Circuit Judges.
Petitioner seeks to set aside an order made in the case of United States v. Madison-Lewis, Inc. and Gustave A. Godinez, defendants. The indictment charged importation of merchandise from a Danish corporation by means of fraudulent and fake invoices. Defendants moved for leave to take the deposition of the manager of a Danish corporation from which defendants had purchased the goods referred to in the indictment. The motion was granted on condition 'that Fedania A/S, the proposed deponent, consent in writing to open its files to search and investigation by the United States.'
Though we express no opinion on whether the district court should grant the motion for the taking of a deposition, we grant the petition for writ of mandamus and direct the district judge to expunge from any order he may make to take the deposition of Fedania A/S the condition that the deponent consent to open its files to search and investigation by the United States.
SWAN, Circuit Judge (dissenting).
This petition for mandamus seeks to have us review on the merits an interlocutory order which is not appealable. I think we should deny the petition without discussing the merits. See Fred Benioff Co. v. McCullock, 9 Cir., 133 F.2d 900; Bank Line v. United States, 2 Cir., 163 F.2d 133.