Wirtz v. Robinson & Stephens, Inc.
| Decision Date | 31 October 1966 |
| Docket Number | No. 22555.,22555. |
| Citation | 368 F.2d 114 |
| Parties | W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. ROBINSON & STEPHENS, INC. and Henry A. Stephens, Sr., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bessie Margolin, Associate Sol., Dept. of Labor, Carin Ann Clauss, Atty., Dept. of Labor, Washington, D. C., Charles Donahue, Sol. of Labor, Robert E. Nagle, Atty., United States Dept. of Labor, Washington, D. C., for appellant.
Charles D. Read, Jr., Atlanta, Ga., Wotton, Long, Jones & Read, Charles D. Read, Jr., Atlanta, Ga., for appellees.
Before RIVES, BELL and THORNBERRY, Circuit Judges.
The District Court dismissed the suit which is the subject matter of this appeal for failure of the Secretary to comply with a pre-trial order. The refusal to comply was based on a formal claim of privilege as the doctrine of privilege embraced the Secretary's dealings with informers. The specific question presented is whether the District Court erred in requiring the Secretary to designate, ten days before trial, which of his prospective witnesses had given written statements concerning the employment practices in suit. We conclude that the pre-trial order was error under the circumstances, and reverse.
The Secretary brought suit to enjoin violations of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The alleged violations relate to the failure to pay minimum wages and overtime compensation, and also the failure to keep adequate and accurate records as required by the applicable regulations. 29 U.S.C.A. §§ 206, 207, 211(c), and 215 (a) (1), (2) and (5).
Counsel for the defendants employed extensive discovery proceedings in connection with the defense of the suit. The narrow issue presented had its inception in the refusal of the Secretary to answer an interrogatory which sought the names of all persons who had given written statements concerning the employment practices involved, and the subject matter of any such statements. The Secretary took the position that such disclosure would violate the privilege to withhold the names of informers.
The District Court modified the relief sought by the defendants in this respect to require the Secretary to make available to the employer, at least ten days in advance of trial, the names of the witnesses the Secretary would have present at the trial unless due notice was given to the opposing party to the contrary. This is a standard requirement under the pre-trial procedures in the Northern District of Georgia and no objection was lodged as to it. However, the court went further and required that, in connection with the list of witnesses, the Secretary designate which of said witnesses had given written statements to the Secretary. The Secretary, being of the view that this was simply another way of making him disclose the names of informers, refused to comply with the order. The complaint was dismissed, and this appeal followed.
The order of the District Court was based on the theory that the fact of giving a statement did not necessarily indicate that the statement maker was an informer. The court stated that its ruling preserved the defendants' rights under Rule 34, F.R.Civ.P., to discover statements upon showing good cause therefor, and that the question of privilege could be asserted and determined if and when the defendants moved under Rule 34.
In Wirtz v. Continental Finance & Loan Co. of West End, 5 Cir., 1964, 326 F.2d 561, the Secretary had already furnished the names of persons who had knowledge or were believed to have knowledge of facts relevant to the trial of the issues. He refused, however, to give the names, in response to an interrogatory, of all persons who had filed complaints against the employer. We found it unnecessary to reach the question of privilege but treated the interrogatory as merely an effort to obtain the names of informers, something irrelevant to any issue, and reversed the dismissal of the complaint by the District Court based on the failure of the Secretary to answer. We followed this case in Wirtz v. McDade, 5 Cir., 1964, 330 F. 2d 610, and held that the Secretary was not required to comply with a discovery order directing him to deliver statements taken by his representatives to the employer for inspection. Cf. Mitchell v. Roma, 3 Cir., 1959, 265 F.2d 633 (...
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U.S., In re
...326 F.2d at 563, and limits the right of disclosure under Rule 34 of the Federal Rules of Civil Procedure. Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114, 116 (5th Cir. 1966). Indeed, there is ample authority for the proposition that the strength of the privilege is greater in civil litig......
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Dole v. Local 1942, Intern. Broth. of Elec. Workers, AFL-CIO
...is arguably greater (see Hampton, supra; In re United States, 565 F.2d at 22 and authorities cited therein; Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114, 116 (5th Cir.1966)) since not all constitutional guarantees which inure to criminal defendants are similarly available to civil When ......
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NLRB v. Neuhoff Bros., Packers, Inc.
...Wirtz v. Continental Finance & Loan Co., 5 Cir., 1964, 326 F.2d 561; Wirtz v. McDade, 5 Cir., 1964, 330 F.2d 610; Wirtz v. Robinson & Stephens, Inc., 5 Cir., 1966, 368 F.2d 114, or as a matter of self-help investigation, must avoid those coercive tendencies which it is the very purpose of t......
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Equal Employ. Op. Com'n v. Los Alamos Constructors, Inc.
...the employer to know who had informed on it. This is not a relevant issue to the cause before the trial court." Wirtz v. Robinson & Stephens, Inc. (1966) 5 Cir., 368 F.2d 114, holds only that plaintiff could not be required to name persons who had furnished written statements. The court rea......