Borden Company v. Sylk, No. 17592.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSEITZ, ALDISERT and STAHL, Circuit
Citation410 F.2d 843
PartiesThe BORDEN COMPANY v. William SYLK and Harry S. Sylk v. PENROSE INDUSTRIES CORPORATION Sylvan Seal Milk, Inc., Appellant.
Decision Date13 May 1969
Docket NumberNo. 17592.

410 F.2d 843 (1969)

The BORDEN COMPANY
v.
William SYLK and Harry S. Sylk
v.
PENROSE INDUSTRIES CORPORATION
Sylvan Seal Milk, Inc., Appellant.

No. 17592.

United States Court of Appeals Third Circuit.

Argued March 28, 1969.

Decided May 13, 1969.


410 F.2d 844

Israel Packel, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for appellant.

John D. Egnal, Egnal, Simons & Egnal, Michael H. Egnal, Philadelphia, Pa., for appellees.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This is an appeal from a discovery order of the district court compelling the disclosure of certain business information by a non-party witness 289 F.Supp. 847. Suit was brought in the court below by the Borden Company against William and Harry Sylk as the endorsers of certain outstanding promissory notes. The maker of the notes, Penrose Industries Corporation, was joined as a third-party defendant.

Penrose filed cross-claims against Borden alleging breach of contract and violations of federal anti-trust laws. Specifically, Penrose asserted that: (1) Borden breached its agreement to sell ice cream to Penrose at a price equal to the lowest retail-outlet price charged by Borden; and (2) Borden's use of its wholly-owned subsidiary Sylvan Seal Milk, Inc. in distributing its products was in violation of the Robinson-Patman Act, 15 U.S.C. §§ 13 and 14.

When Borden's motion to dismiss the cross-claims was denied by the lower court, Penrose moved to depose certain corporate officers of Borden and Sylvan in an attempt to discover the specifics of the Borden-Sylvan distributive arrangement. In the course of depositions, Sylvan's president refused to answer certain inquiries into the volume and prices charged by Sylvan to its customers. The ostensible reason for his refusal was that publication of such confidential information would seriously prejudice Sylvan's competitive standing.

Penrose then moved to compel answers. Upon a finding that the information sought could be considered relevant to the litigation, the district court granted the motion. To insulate Sylvan against serious competitive damage, at least at the pretrial stage, the court directed that "no such information shall be disclosed to the public or to any competitor

410 F.2d 845
of the plaintiff." Sylvan has appealed

It is a well-established principle that the scope and conduct of discovery are within the sound discretion of the trial court. It is equally well established that such orders compelling or denying discovery are generally interlocutory. Since the enactment of the Judiciary Act of 1789, the Congress has consistently directed that the jurisdiction of the courts of appeals should extend only to decisions of the district courts which are final. 28 U.S.C.A. § 1291. Only certain specifically enumerated orders which would otherwise be considered interlocutory, contained in Section 1292 of Title 28, none of which are involved here, are appealable.

In considering the Congressional directive as it relates to our appellate jurisdiction, Chief Judge Hastie has emphasized its "jurisprudential significance beyond mere technicality. It is an authoritative application and implementation of a basic and persisting policy against piecemeal appeals." Panichella v. Penna. R. Co., 252 F.2d 452, 454 (3 Cir. 1958).

Admittedly, the determination of what decisions are final may sometimes be difficult. Recognizing this, the Supreme Court has indicated that "the requirement of finality is to be given a `practical rather than a technical construction.'" Gillespie v. United States Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). The Court also suggests that the most important considerations in deciding the issue of finality are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by...

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105 practice notes
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...Inc., 480 F.2d 1295, 1300-01 (8 Cir. 1973); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir. 1969). The doctrine has since been reaffirmed by a unanimous Court in United States v. Ryan, 402 U.S. 530 (91 S.Ct. 1580, 29 L.Ed.......
  • Bachowski v. Usery, No. 76-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 3, 1976
    ...508 F.2d 152, 159 (3d Cir. 1975). 48 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2148, 40 L.Ed.2d 732 (1974). 49 410 F.2d 843 (3d Cir. 50 Id. at 845-46. 51 See, e. g., Rodgers v. United States Steel Corp., 508 F.2d 152, 159-60 (3d Cir. 1975) (Gibbons, J.); Samuel v. Uni......
  • U.S. v. Dorfman, Nos. 82-2083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 2, 1982
    ...order" doctrine in criminal cases, lest we find that we are reviewing more "collateral" than "final" orders. Borden Co. v. Sylk, 410 F.2d 843, 845-46 (3rd Cir. We might agree that the district court's denial of suppression conclusively adjudicated the defendants' rights to suppress the elec......
  • Kaufman v. Edelstein, Nos. 934
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 20, 1976
    ...480 F.2d 1295, 1300-01 (8 Cir. 1973); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (D.C. Cir. 1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir. 1969). The doctrine has since been reaffirmed by a unanimous Court in United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L......
  • Request a trial to view additional results
105 cases
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...Inc., 480 F.2d 1295, 1300-01 (8 Cir. 1973); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir. 1969). The doctrine has since been reaffirmed by a unanimous Court in United States v. Ryan, 402 U.S. 530 (91 S.Ct. 1580, 29 L.Ed.......
  • Bachowski v. Usery, No. 76-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 3, 1976
    ...508 F.2d 152, 159 (3d Cir. 1975). 48 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2148, 40 L.Ed.2d 732 (1974). 49 410 F.2d 843 (3d Cir. 50 Id. at 845-46. 51 See, e. g., Rodgers v. United States Steel Corp., 508 F.2d 152, 159-60 (3d Cir. 1975) (Gibbons, J.); Samuel v. Uni......
  • U.S. v. Dorfman, Nos. 82-2083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 2, 1982
    ...order" doctrine in criminal cases, lest we find that we are reviewing more "collateral" than "final" orders. Borden Co. v. Sylk, 410 F.2d 843, 845-46 (3rd Cir. We might agree that the district court's denial of suppression conclusively adjudicated the defendants' rights to suppress the elec......
  • Kaufman v. Edelstein, Nos. 934
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 20, 1976
    ...480 F.2d 1295, 1300-01 (8 Cir. 1973); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (D.C. Cir. 1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir. 1969). The doctrine has since been reaffirmed by a unanimous Court in United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L......
  • Request a trial to view additional results

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