Carr v. Monroe Manufacturing Company, No. 28397.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtJOHN R. BROWN, , AINSWORTH and GODBOLD, Circuit
Citation431 F.2d 384
Docket NumberNo. 28397.
Decision Date18 August 1970
PartiesGrozella CARR, Fannie Moore, Vera Walker, Coda M. Fears, Mary Lessie Ewing and Ester Stegall, Plaintiffs-Appellees, v. MONROE MANUFACTURING COMPANY, Defendant, John E. Aldridge and Marvin Wooten, Defendants-Appellants.

431 F.2d 384 (1970)

Grozella CARR, Fannie Moore, Vera Walker, Coda M. Fears, Mary Lessie Ewing and Ester Stegall, Plaintiffs-Appellees,
v.
MONROE MANUFACTURING COMPANY, Defendant,
John E. Aldridge and Marvin Wooten, Defendants-Appellants.

No. 28397.

United States Court of Appeals, Fifth Circuit.

August 18, 1970.


431 F.2d 385

H. L. Hutcherson, Walter R. Bivins, Jackson, Miss., for defendants-appellants.

Robert Fitzpatrick, James Robertson, Jackson, Miss., Mr. Robert Patterson, Aberdeen, Miss., for plaintiffs-appellees.

Before JOHN R. BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

The plaintiffs are Negroes who brought a class action against the corporate defendant (now Conoco Plastics, Inc.) and against the individual defendants, as officers of the Mississippi Employment Security Commission (MESC), charging Monroe Manufacturing Company with racial discrimination in employment and the individual state officers with racial discrimination in handling

431 F.2d 386
job applications and in job referrals and employment classification, all in violation of Tit. VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq

It quickly became obvious to the parties that records of MESC would be among the most relevant evidence in the case. The MESC officials filed a motion in the District Court contending that under Section 7411,1 Miss.Code of 1942, as amended, the MESC records in question were privileged and confidential and that any employee of the Commission who revealed them was subject to criminal prosecution. They moved the court to hold the records privileged, and to facilitate decision plaintiffs filed a cross-motion for their production. The District Judge granted the cross-motion to produce, and subsequently entered various protective provisions but declined to allow the MESC officials to block out on work application cards the names and addresses of applicants for employment and of employers not parties to the suit. The MESC officers seek to appeal from this latter part of the order.

The District Judge declined to certify the question as an appealable interlocutory order under 28 U.S.C. § 1292(b). The MESC officers then filed this appeal as from an injunction under 28 U.S.C. § 1292(a). Plaintiffs moved to dismiss the appeal, and the motion was carried with the case.

We hold that the order was appealable as a final order, 28 U.S.C. § 1291. No provision of § 1292 allows this appeal.

The following district court orders, entered in aid of a pending civil action and whether directed to a party or non-party, * * * are interlocutory in character, and are non-appealable: an order directing or refusing to direct the issuance of a subpoena, or granting or denying a motion to vacate a subpoena; an order directing or refusing to direct a party or witness to testify or to produce documents in response to a subpoena or a notice; an order granting or denying a motion to suppress a deposition; an order directing or refusing to direct a party to permit inspection under Rule 34; an order requiring or refusing to require a party to submit to a physical examination under Rule 35. Nor is such interlocutory order appealable as an injunction.

6 Moore, Federal Practice, ¶ 54.16 at 147 (2d ed. 1966). As pointed out in Cobble-dick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the requirements of a healthy legal system simply do not permit halting the orderly process of a case in midstream to review

431 F.2d 387
incidentally matters which cross the current of the litigation. The relief sought by plaintiffs is not an injunction — all orders of court are mandatory in the sense that they must be obeyed but not all orders of court are injunctions. 6 Moore, ¶ 54.07 at 46. Construing discovery orders as injunctive would do violence to the policies enunciated in Cobbledick. See, e. g., Tracor, Inc. v. Premco Instruments, Inc., 395 F.2d 849 (5th Cir. 1968)

However, discovery orders may be appealable where a governmental privilege is asserted and the government is not a party to the suit. Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417 (5th Cir. 1968); Overby v. United States Fidelity & Guaranty Co., 224 F.2d 158 (5th Cir. 1955). In such cases the asserted governmental interest may be "irretrievably breached" by disclosure, and the government has no remedy on appeal from a final judgment in the original action, even where the matter sought to be discovered is held by one of the parties on the government's behalf. Overby, supra, at 162.

Applying these principles to this case, to the extent that the appellants asserted the protection of the privilege on their own behalf, denial of the privilege was not appealable in the absence of a finding of contempt or a final judgment. Cobbledick, supra. But to the extent that a colorable claim was properly alleged on behalf of the State of Mississippi, the order was appealable.

Governmental privilege is assertible only by the government affected. United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727, 733 (1953).

There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege. * * *

Id. at 7-8, 73 S.Ct. at 531, 97 L.Ed. at 733. Overby, supra, at 162-163. The claim of privilege was lodged in part by Aldridge, who as MESC chairman administers the Mississippi State Employment Service. Therefore it was properly raised.

The trial court followed the Overby requirement of independent judicial examination of the appropriateness of the privilege. On this appeal, defendants suggest that the case by case approach to the privilege is inappropriate in that the Mississippi statutes grant an absolute privilege against disclosure of the employment records here sought.

We turn first to plaintiffs' suggestion that we narrow the statutes by construction. Plaintiffs maintain that § 74122 is inapplicable to a claim of testimonial privilege, and that § 7411, providing for confidentiality, would not be construed by the Mississippi courts to grant an absolute privilege for all communications to MESC. They argue persuasively that the privilege contemplated by § 7412 is not a freedom from divulging confidential communications at all, but that the section refers instead to nonliability in slander actions for communications to MESC. Cf. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So.2d 771 (1949) (en banc). They cite cases from other jurisdictions interpreting statutes strikingly similar to § 7411 as posing no bar to discovery of otherwise confidential communications in connection with pending litigation of all sorts.3

431 F.2d 388

We decline the invitation to divine how the Mississippi courts would construe the statutes.4 Such a determination is unnecessary to our decision and is better left to the state courts.

We proceed to examine the role of the claimed state evidentiary privilege in this federal case.

The Mississippi statute, however construed, does not grant an absolute privilege from disclosure of MESC records in this case. We have recently reviewed the relevant authorities in Garner v. Wolfinbarger, 430 F.2d 1093 No. 26168, 5th Cir., Aug. 31, 1970. We there concluded that in any given instance the special federal interest in seeking the truth in a federal question case may require disclosure despite the existence of a...

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54 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)
    • 17 Enero 1979
    ...in cases where it is not a party. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5 Cir. 1973); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387 (5 Cir. 1970), Cert. denied sub nom. Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); Overby v. United States Fidelit......
  • Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 86-9
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • 28 Abril 1986
    ...with a court's demand for documents. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir. 1973); Carry. Monroe Manufacturing Co., 431 F.2d 384, 387 (5th Cir. 1970), cert, denied, 400 U.S. 1000 (1971); but see In re the Attorney General, 596 F.2d 58, 62 (2d Cir.), cert, denied, 444 ......
  • Nixon v. Sirica, No. 73-1962
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 12 Octubre 1973
    ...85 (1971). See also Cobbledick v. United States, 309 U. S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). But see Carr v. Monroe Mfg. Co., 431 F.2d 384 (5th Cir. 18 Compare Schlagenhauf v. Holder, 379 U.S. 104, 110-111, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). 19 Id. 20 Bankers Life & Cas. Co. v. Holl......
  • NATHAN DIRECTOR v. Commissioner, Docket No. 15877-84
    • United States
    • U.S. Tax Court
    • 13 Junio 1988
    ...(1976); Kerr v. United States District Court, 511 F.2d 192 (9th Cir. 1975), affd. 426 U.S. 394 (1976); Carr v. Monroe Manufacturing Co., 431 F.2d 384 (5th Cir. 1970), cert. denied 400 U.S. 1000 (1971). When the court is confronted by a claim of privilege not firmly embedded in Federal law, ......
  • Request a trial to view additional results
54 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)
    • 17 Enero 1979
    ...in cases where it is not a party. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5 Cir. 1973); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387 (5 Cir. 1970), Cert. denied sub nom. Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); Overby v. United States Fidelit......
  • Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 86-9
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • 28 Abril 1986
    ...with a court's demand for documents. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir. 1973); Carry. Monroe Manufacturing Co., 431 F.2d 384, 387 (5th Cir. 1970), cert, denied, 400 U.S. 1000 (1971); but see In re the Attorney General, 596 F.2d 58, 62 (2d Cir.), cert, denied, 444 ......
  • Nixon v. Sirica, No. 73-1962
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 12 Octubre 1973
    ...85 (1971). See also Cobbledick v. United States, 309 U. S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). But see Carr v. Monroe Mfg. Co., 431 F.2d 384 (5th Cir. 18 Compare Schlagenhauf v. Holder, 379 U.S. 104, 110-111, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). 19 Id. 20 Bankers Life & Cas. Co. v. Holl......
  • NATHAN DIRECTOR v. Commissioner, Docket No. 15877-84
    • United States
    • U.S. Tax Court
    • 13 Junio 1988
    ...(1976); Kerr v. United States District Court, 511 F.2d 192 (9th Cir. 1975), affd. 426 U.S. 394 (1976); Carr v. Monroe Manufacturing Co., 431 F.2d 384 (5th Cir. 1970), cert. denied 400 U.S. 1000 (1971). When the court is confronted by a claim of privilege not firmly embedded in Federal law, ......
  • Request a trial to view additional results

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