23979. Tomato catsup.    (F. D. C. No. 38501.    S. No. 27-935 M.) 
QUANTITY :   936 cases, 24 btls. each, at Atlanta, Ga.
SHIPPED:   9-3-55, from Elwood, Ind., by Frazier-Schafer Farms, Inc.
LABEL IN PART: (Btl.) "Frazier's Superfine Contents 14 Oz. Avd. Tomato 
Catsup."
LIBELED :   10-12-55, N. Dist. Ga.
CHARGE:   402 (a)   (3)—contained decomposed tomato material when shipped.
DISPOSITION : Frazier-Schafer Farms, a partnership, Elwood, Ind., having ap- 
peared as claimant, filed an answer on 11-23-55 denying that the article was 
adulterated. Thereafter, the Government served written interrogatories upon 
the claimant and in response thereto, the claimant filed its answers to all 
interrogatories except for those numbered 4 (d), 5, 12 and 15 to which ob- 
jections were made. A hearing on the objections was held, and on 4-12-56 
the court handed down the following ruling thereon:
"Interrogatories were filed February 6, 1956 and objections thereto are 
attached to the answers which were filed March 19, 1956.
"Interrogatory 4 (d) directs the defendant to 'furnish copies of reports of 
inspection.' Interrogatory #5 directs respondent to attach to its answers 'the 
results of analyses,' and a statement as to when each sample was collected. 
Interrogatory #12 in part directs respondent to attach to its answer 'the 
results of all analyses reported by you,' etc.
"It will be observed that each of the foregoing interrogatories contemplate 
that the respondent shall attach certain documents to answers. Plaintiff 
should have employed Rule 34 which contemplates the production of docu- 
ments in connection with which it is necessary that good cause shall be 
shown. There are a few cases which uphold the procedure followed by the 
Government in this case, but the great weight of authority is to the contrary. 
See Castro vs. A. H. Bull & Co. (S. D. N. Y.) 9 F. R. D. 84; Jones vs. Penn. 
R. R. Co. (N. D. Ill), 7 F. R. D. 662; Roth, et al vs. Paramount Film Dis- 
tributing Corp. et al (W. D. Penn.) 4 F. R. D. 302. It is ruled therefore, that 
insofar as the foregoing Interrogatories seek the production of documents the 
objections are sustained, but respondent should answer as to Interrogatory 
#5, 'the results of analyses of all samples taken,' and as to Interrogatory #12 
should state 'the results of all analyses.'
"Interrogatory #15 desires the names 'of all persons that claimant intends 
to call as witnesses.' The Interrogatory, as written, if it desires the names 
of parties having knowledge of the facts, is proper, but if it is designed to 
commit the respondent to the calling of certain persons as witnesses so as
to cause embarrassment to the respondent should the respondent change its 
mind, it is improper. This* question has been frequently discussed by the 
courts, and efforts have been made to amend the Rules of Civil Procedure 
so as to require a party to give the names of their witnesses, but these efforts 
have failed. One reason the rules were not amended is the fact that many 
district judges have adopted the practice of requiring the parties at a pre-trial 
to give the names of their witnesses, and this practice has been taken to be 
adequate.
"There are several objections which might be urged to require a party to 
give the names of parties intended to be called as witnesses. Should some 
of these parties not be called, opposing counsel could argue that fact that if 
the witness, if produced would have been adverse. In that regard Georgia Code 
Section 88-119 reads as follows:
where a party has evidence in his power and within his reach, by which 
he may repel a claim or charge against him, and omits to produce it, 
having more certain and satisfactory evidence in his power, relies on that 
which is of a weaker and inferior nature, a presumption arises that the 
the charge or claim is well founded; but this presumption may be rebutted.
"Federal Courts have laid down a similar rule but one not as far reaching 
as the Georgia statute, a collection of these cases being found in Federal Digest, 
Volume 30, under the subject of Evidence, Key #76. Most of these cases are 
to the effect that where a party has it in his power to call certain witnesses 
but does not call them, there is a presumption that their testimony, if called, 
would not be favorable to his case. Whether a party has it within his power 
to produce a certain witness it is often vague and uncertain, but it would seem 
that when one party has the name of a person who has knowledge of the case, 
and gives the name and address of that possible witness to the other party to 
the case, each party has equal opportunity to subpoena the witness and there- 
fore, it cannot be said that the party having first knowledge of the witness 
has the witness under his power any more than the other party.
"The Court, therefore, is interpreting Interrogatory #15 as asking for the 
names and addresses of all persons who within the knowledge of the respond- 
ent have knowledge of the facts involved in the litigation. Whereupon, such 
parties may be interviewed by the Government if it sees fit to do so."
On 8-8-56, the claimant filed a petition for an order to permit the claimant, 
under the supervision of the Food and Drug Administration, to segregate the 
bottles of the article seized into separate groups of 100 cases each, and further 
to permit the claimant and the Food and Drug Administration to take post- 
seizure samples of each such group. In addition, the claimant filed a petition 
on 9-7-56 for removal of the libel action to the United States District Court 
for the Northern District of Indiana, Lafayette Division. On 9-12-56, the 
court entered an order denying the petition for segregation since the petition 
was not supported by a brief as required by the local rule of court. On 10-19- 
56, pursuant to the claimant's petition for removal, the court ordered the libel 
action removed to the United States District Court for the Northern District 
of Indiana, Lafayette Division. Thereafter, the Government filed with the 
United States District Court for the Northern District of Indiana, Hammond 
Division, a motion to remand the case to the court of original jurisdiction. 
On 12-4-56 the United States District Court for the Northern District of 
Indiana, Hammond, Indiana, granted the motion to remand on the ground that 
the above mentioned removal order of 10-19-56 was void, since there was 
no such court as the United States District Court for the Northern District 
of Indiana, Lafayette Division, to which the order had directed the libel action 
to be removed. Following the remanding of the case to the United States Dis- 
trict Court for the Northern District of Georgia, the claimant withdrew its 
claim and answer, and on 3-29-57 an order was entered for the condemnation 
and destruction of the article.