Atlantic City Electric Company v. AB Chance Company

• Decision Date: 31 January 1963
• Parties: ATLANTIC CITY ELECTRIC COMPANY et al., Plaintiffs, v. A. B. CHANCE COMPANY et al., Defendants, and Electrical Equipment Antitrust Cases Pending in Various United States District Courts.
• Court: U.S. Court of Appeals — Second Circuit

313 F.2d 431 (1963)

ATLANTIC CITY ELECTRIC COMPANY et al., Plaintiffs, v. A. B. CHANCE COMPANY et al., Defendants, and Electrical Equipment Antitrust Cases Pending in Various United States District Courts.

United States Court of Appeals Second Circuit.

Motion Argued January 31, 1963.

Decided January 31, 1963.

James B. Henry, Jr., Webster, Sheffield, Fleischmann, Hitchcock & Chrystie, New York City (Kaye, Scholer, Fierman, Hays & Handler, New York City, on the brief), for Atlantic City Electric Co. and others, plaintiffs.

Kaye, Scholer, Fierman, Hays & Handler, New York City, for Atlantic City Electric Co. and others and Appalachian Power Co. and others, plaintiffs.

LeBoeuf, Lamb & Leiby, New York City, for Arkansas Power & Light Co. and others, Consolidated Edison Co. of New York, Inc., Niagara Mohawk Power Corp. and Orange and Rockland Utilities, Inc., plaintiffs.

Reid & Priest, Coudert Brothers, New York City, for Dallas Power & Light Co. and others, and Carolina Power & Light Co. and others, plaintiffs.

Winthrop, Stimson, Putnam & Roberts, New York City, for Consumers Power Co. and others, plaintiffs.

Edgar E. Barton, Porter R. Chandler, Ralph LaVerne McAfee, Brown, Wood, Fuller, Caldwell & Ivey, New York City (White & Case, Davis, Polk, Wardwell, Sunderland & Kiendl, Cravath, Swaine & Moore, New York City, on the brief), for A. B. Chance Co., and others, defendants.

Hughes, Hubbard, Blair & Reed, New York City, for Allen-Bradley Co., defendant.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for Allis-Chalmers Mfg. Co., Carrier Corp., defendants.

Wickes, Riddell, Bloomer, Jacobi & McGuire, New York City, for C. H. Wheeler Mfg. Co., Clark Controller Co., Lapp Insulator Co., Inc., McGraw Edison Co., Ohio Brass Co., defendants.

Proskauer, Rose, Goetz & Mendelsohn, New York City, for Cornell-Dubilier Electric Corp., Federal Pacific Electric Co., defendants.

Kissam & Halpin, New York City, for Cutler-Hammer, Inc., defendant.

Meyer, Kissel, Matz & Seward, New York City, for Foster-Wheeler Corp., defendant.

White & Case, New York City, for John T. Peters and General Electric Co., defendants.

Alexander & Green, New York City, for H. K. Porter Co., Inc., defendant.

Austin, Burns, Appell & Smith, New York City, for Ingersoll-Rand Co., defendant.

Haight, Gardner, Poor & Havens, New York City, for I-T-E Circuit Breaker Co., defendant.

Stickles, Hayden, Kennedy, Hort & Van Steenburgh, New York City, for Joslyn Mfg. & Supply Co., the Porcelain Insulator Corp., defendants.

Casey, Lane & Mittendorf, New York City, for Kuhlman Electric Co., defendant.

Cleary, Gottlieb, Steen & Hamilton, New York City, for Moloney Electric Co., Sangamo Electric Co., Wagner Electric Corp., defendants.

Laporte & Meyers, New York City, for Schwager-Wood Corp., defendant.

Clark, Carr & Ellis, New York City, for Southern States, Inc., defendant.

Allan D. Emil, New York City, for Square D. Co., defendant.

Close, Griffiths, McCarthy & Gaynor, White Plains, N. Y. by Martin Drazen, White Plains, N. Y. for Ward Leonard Electric Co., defendant.

Cravath, Swaine & Moore, New York City, for Westinghouse Electric Corp., defendant.

Gallop, Climenko & Gould, New York City, for Worthington Corp., defendant.

Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL, Circuit Judges.

PER CURIAM.

We deny in open court leave to appeal under 28 U.S.C. § 1292(b) from the order of the District Court for the Southern District of New York, which provided for the use during the taking of the deposition of witness John T. Peters of testimony given by him before a grand jury sitting in the Eastern District of Pennsylvania. We deny also the petition for a writ of mandamus. After this application for leave to appeal under § 1292 (b) had been filed, but before it had been heard, this court on January 22, 1963, amended its rules to provide that such applications would be passed upon by a panel of this court instead of by all the active circuit judges as theretofore. Consequently, Judges FRIENDLY, SMITH and HAYS having disqualified themselves from acting in this matter, the panel of the court before whom these applications were heard was designated by all the remaining active circuit judges to pass upon these applications.

The order in question was issued on December 18, 1962, by the Honorable George H. Boldt, United States District Judge for the Western District of Washington, sitting as a Special Master by designation, and was confirmed by Chief Judge Ryan on December 20. Prior to the issuance of the order, Judge Boldt had obtained and perused a copy of Peters' grand jury testimony pursuant to an order of Chief Judge Clary of the United States District Court for the Eastern District of Pennsylvania, dated October 23, 1962. Judge Clary's order provided that in connection with the National Deposition Program, set up to expedite discovery proceedings in the many electrical antitrust cases now pending,¹ the grand jury testimony of any witness would be released to a Deposition Judge on his request. If, after examining the testimony, the Deposition Judge determined that it should be made available in the deposition proceedings before him, he could so order; otherwise the testimony was to be returned to the District Court for the Eastern District of Pennsylvania.

The respondents have urged that since Judge Boldt's order is dependent on the prior order of Judge Clary in the Eastern District of Pennsylvania, the question whether grand jury testimony should be released to a private plaintiff in a...