Puerto Rico Elec. Power Authority, In re, 82-1257

• Citation: 687 F.2d 501
• Decision Date: 11 August 1982
• Docket Number: No. 82-1257,82-1257
• Parties: In re PUERTO RICO ELECTRIC POWER AUTHORITY, Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 501

687 F.2d 501

In re PUERTO RICO ELECTRIC POWER AUTHORITY, Petitioner.

No. 82-1257.

United States Court of Appeals, First Circuit.

Argued April 8, 1982.

Decided Aug. 11, 1982.

K. Robert Conrad, Philadelphia, Pa., with whom Nancy J. Gellman, Alexander Kerr, Robert A. Prentice, Hunt, Kerr, Bloom, Hitchner, O'Brien & Conrad, Philadelphia, Pa., and Luis A. Lugo, Jr., Hato Rey, P. R., were on memorandum, for petitioner.

Irving Jaffe, Washington, D. C., with whom Pettit & Martin, Washington, D. C., Ronald A. Cohan, Los Angeles, Cal., Jay A. Garcia-Gregory, and Fiddler, Gonzalez & Rodriguez, San Juan, P. R., were on memorandum, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The Puerto Rico Electric Power Authority ("PREPA") petitions for an extraordinary writ in the nature of mandamus, 28 U.S.C. § 1651, to set aside three unrelated orders of the United States District Court for the District of Puerto Rico. These orders were made at preliminary stages in an action brought by Mitsui & Co. (U. S. A.) ("Mitsui") against PREPA for breach of contract and tort in connection with Mitsui's construction of a fossil-fueled power plant in Aguirre, Puerto Rico, under bid from PREPA. Jurisdiction in the district court case is founded on diversity of citizenship.

The district court orders from which PREPA seeks relief by way of mandamus are (1) an order requiring PREPA to comply with a Mitsui discovery request made pursuant to Fed.R.Civ.P. 30(b)(6); (2) the granting of Mitsui's motion for summary judgment on the issue of Mitsui's standing to bring this case as a real party in interest; and (3) an order requiring PREPA to translate (or pay Mitsui the costs of translating) all Spanish language documents produced by PREPA in the course of pretrial discovery. We deal with each of these matters in turn.

Rule 30(b)(6)

Rule 30(b)(6) of the Federal Rules of Civil Procedure provides:

A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

On July 10, 1981, Mitsui served upon PREPA a detailed notice of deposition pursuant to this rule. Shortly thereafter, PREPA moved for a protective order claiming that the request was duplicative of prior discovery and overly burdensome. Mitsui then moved for sanctions to compel discovery. After argument, the district court issued an order and opinion on November 16, 1981, in which it granted Mitsui's motion to compel discovery and awarded Mitsui costs and attorneys' fees on its motion under Fed.R.Civ.P. 37. PREPA then filed a motion for reconsideration which was denied on February 11, 1982, with an opinion clarifying the prior order. PREPA's petition for mandamus to this court followed.

PREPA acknowledges that it has a heavy burden to justify mandamus against a discovery order of this sort. It has to demonstrate that the district court exceeded its jurisdictional authority to such a degree that its actions amounted to a "usurpation of power." DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945). PREPA attempts to meet this burden by characterizing the discovery request as so burdensome as to be impossible of fulfillment, by pointing to statements of opposing counsel in the record which seem to suggest that Mitsui expects to "bind" PREPA in some conclusive manner through these Rule 30(b) depositions, and by alleging that there is no legal authority under Rule 30(b) for the district court's approval of Mitsui's request that PREPA's designated officials bring to their depositions certain documents relevant to their testimony. This rhetoric, however, falls well short of demonstrating a case for mandamus.

The relief granted Mitsui remains subject to the further jurisdiction of the district court. In a February 11, 1982 opinion clarifying its earlier order, the court emphasized that PREPA is free to move for such protective orders as PREPA thinks are necessary to shelter privileged and other materials. We thus have no reason to anticipate the future abuses which PREPA conjures up.

Nor are we moved by PREPA's alleged concern over being "bound" conclusively by its officials' depositions under Rule 30(b)(6). To the extent a designated official having authority may make a binding admission this is part of the normal risk of litigation; to the extent PREPA construes or misconstrues Rule 30(b)(6) as leading to more horrendous results, the actual effects can be considered and if need be ameliorated on appeal. With respect to requiring persons deposed under Rule 30(b)(6) to bring documents to their deposition, this is scarcely so unreasonable a practice, see Rule 30(b)(5), as to constitute the kind of usurpation of authority by the court which might serve as a ground for review by mandamus. While we do not now pass on the rights and wrongs of the matter, it clearly does not justify issuance of an extraordinary writ.

In sum, regarding the district court's Rule 30(b)(6) order, "the most that could be claimed is that the district court( ) (has) erred in ruling on matters within (its) jurisdiction." Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956); In re Ellsberg, 446 F.2d 954, 956 (1st Cir. 1971). Such errors are not, for reasons of judicial economy and the avoidance of delay and confusion in the conduct of discovery, normally occasions for issuance of mandamus, and we see no reason to make an exception to this well-settled rule here. We accordingly deny PREPA's petition as it relates to Mitsui's Rule 30(b)(6) request.

Summary Judgment

PREPA next challenges what it alleges to be an erroneous decision of the district court granting Mitsui's request for summary judgment on the issue of Mitsui's standing as a proper plaintiff to bring this action. PREPA asserts that the court erred in ruling that there were no material issues of fact in dispute, in failing to certify a question of Puerto Rico law to the Supreme Court of Puerto Rico, and, ultimately, in resolving the merits of the legal question of standing in favor of Mitsui rather than PREPA.

To decide whether or not PREPA has stated a case requiring the extraordinary remedy of mandamus, we need not delve fully into the complexities of the district court's opinion. Even if the district court erred in determining there were no issues of material fact and in resolving a legal question adversely to PREPA (issues upon which we express no present opinion), these errors would not justify interlocutory review by way of mandamus. The hardship that might ordinarily be expected to result from delay in reviewing such legal issues is insufficient reason to violate the strong policy against piecemeal appellate review. United States v. Kane, 646 F.2d 4, 9 (1st Cir. 1981). These issues will eventually be subject to appellate review after completion of a trial and entry of judgment. We conclude that the exceptional circumstances needed to justify mandamus have not been shown.

Turning to whether the district court should have certified the question of Puerto Rico law to the Supreme Court of Puerto Rico, we note that the Supreme Court has approved certification in diversity cases in order to "save time, energy, and resources" and to "help( ) build a cooperative federalism." Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). See also Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970). The Supreme Court has indicated, however, that the decision to certify is best left to "the sound discretion of the federal court." Lehman Brothers v. Schein, 416 U.S. at 391, 94 S.Ct. at 1744. Thus while, as a general matter, we would encourage certification of close, important, undecided state law questions, we are unable to say on this record that the district court, in declining to certify, has so clearly abused its discretion as to warrant our compelling it to do so by issuance of the extraordinary remedy of mandamus. The district court is closer than we are to the local law and is also better able to weigh such possible adverse factors flowing from certification as delay, expense and so forth. See 1A (Part 2) Moore's Federal Practice P 203(5). The petition for mandamus to compel certification is accordingly denied.

The Translation Order

PREPA's third ground for seeking mandamus is considerably stronger. The challenged order-that PREPA translate, or pay for translating, into English all Spanish documents produced by it in discovery, for the benefit of Mitsui's American counsel-involves a novel construction of Fed.R.Civ.P. 34(a) for which scant authority is evident. Moreover, in issuing this and a related order, the court has imposed significant pretrial burdens of an unusual nature. Before addressing the merits of this matter, we describe the background of the translation controversy.

After Mitsui had filed its action against PREPA in November 1976, PREPA commenced discovery, including requests for relevant documents from Mitsui and various Japanese companies (among whom was Mitsui & Co. (Tokyo)-Mitsui's parent corporation) involved in the Aguirre project. Upon receipt of these, many of which were written in Japanese, PREPA realized that...