Cates v. LTV Aerospace Corporation, No. 72-2954.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBELL, INGRAHAM and RONEY, Circuit
Citation480 F.2d 620
PartiesInalouise CATES et al., Plaintiffs-Appellees, v. LTV AEROSPACE CORPORATION et al., Defendants. Department of the Navy, Defendant-Appellant.
Docket NumberNo. 72-2954.
Decision Date26 June 1973

480 F.2d 620 (1973)

Inalouise CATES et al., Plaintiffs-Appellees,
v.
LTV AEROSPACE CORPORATION et al., Defendants.
Department of the Navy, Defendant-Appellant.

No. 72-2954.

United States Court of Appeals, Fifth Circuit.

June 26, 1973.


480 F.2d 621

Frank D. McCown, U. S. Atty., Dallas, Tex., for defendant-appellant.

J. Carlisle DeHay, Jr., Dallas, Tex., for LTV.

H. Dudley Chambers, Dallas, Tex., for McDonnell.

Robert M. Greenberg, Dallas, Tex., Walter H. Fleischer, William D. Appler, Dept. of Justice, Washington, D. C., for Goodyear.

James C. Barber, Dallas, Tex., John E. Collins, Irving, Tex., for plaintiffs-appellees.

Before BELL, INGRAHAM and RONEY, Circuit Judges.

BELL, Circuit Judge:

This case involves the validity of an order which required the Department of the Navy to produce an Aircraft Accident Report relating to the crash of a Navy plane in Okinawa. We are asked to determine on this appeal a question of first impression: whether F.R.Civ.P. 30(b)(6)1 can be used to obtain documents in custody of the head of a nonparty government agency in Washington, D. C. by service of a subpoena duces tecum upon a local representative of the agency in Dallas, Texas. We conclude that it cannot be so used.

The proceedings which led to the lower court's discovery order began when the widow and son of a Navy pilot, killed in the Okinawa plane crash, sued three private companies which manufactured the plane and certain of its parts. The Navy was not made a party to the lawsuit.

Plaintiffs attempted to obtain the Aircraft Accident Report through notice under Rule 30(b)(6), and a subpoena to which was attached a list of documents to be produced, in effect a subpoena duces tecum, directed to the Department of the Navy, but served upon the Commanding Officer of the Dallas Naval Air Station. The notice required the Department of the Navy to designate someone to appear for the taking of a deposition on April 3, 1972. The Aircraft Accident Report, which gives rise to the central issue, was one of the documents sought under the subpoena duces tecum.

In addition to the notice and subpoena directed to the Department of the Navy, a notice and the same request for documents were served upon the Navy plant representative at LTV Aerospace Corporation in Grand Prairie, Texas. (LTV was a defendant in the suit.)

On April 3 the Navy plant representative appeared but testified that he had no knowledge of the crash of the aircraft.2 A United States attorney appeared to present the Navy's position, that F.R.Civ.P. 30(b) (6) could not be used to obtain the documents requested by plaintiffs.

Following the Navy's failure to designate and produce documents, plaintiffs filed a motion requesting that the Navy be ordered to designate a person to testify to matters known or reasonably available to the Navy pursuant to Rule 30(b)(6). The Navy responded, again objecting to the procedure followed by plaintiffs, and asserting that a subpoena

480 F.2d 622
duces tecum must be directed to the person who has custody of the documents or in this case the Secretary of the Navy in Washington, D. C. Plaintiffs then filed an additional motion to compel discovery of the documents requested, including the Aircraft Accident Report

On May 17, 1972 the district court found that the Navy had refused to designate a person to testify and had refused to comply with the subpoena duces tecum. Apparently rejecting the Navy's objections to the procedure, the court granted plaintiffs' motion to compel the discovery and ordered that the documents sought, including the Aircraft Accident Report, be produced.

On July 25, 1972 in a "Motion for Reconsideration" the Secretary of the Navy raised the doctrine of executive privilege and sought to have the court reverse its order. By this time, only the Aircraft Accident Report was involved. The court found that the claim of executive privilege came too late, and refused to change its previous ruling. This appeal followed.

For purposes of clarity, it is to be remembered that the real controversy was over the production of documents. However, the failure of the Navy to designate a person to testify is intermixed in that, and as will be seen, the Navy was in clear error in not so designating. This, however, is a peripheral question separate and apart from the issue of using Rule 30(b) (6) to obtain documents from a non-party where the documents are outside the jurisdiction of the court.

I.

Initially it should be noted that discovery orders are generally not appealable. See 8 Wright and Miller, Federal Practice and Procedure: Civil § 2006 (1970). However, discovery orders may be appealable when an executive privilege is involved and the executive or governmental agency is not a party to the lawsuit. Carr v. Monroe Manufacturing Co., 5 Cir., 1970, 431 F.2d 384, 387; Caswell v. Manhattan Fire & Marine Ins. Co., 5 Cir., 1968, 399 F.2d 417, 422; Overby v. United States Fidelity & Guaranty Co., 5 Cir., 1955, 224 F.2d 158, 162. The theory of allowing an appeal rests on the proposition that forced disclosure would irretrievably breach the claim of privilege and render an appeal from final judgment meaningless; hence, the exception. We hold that the order to produce the Aircraft Accident Report is appealable because of the claim of executive privilege. Given this conclusion, we proceed to an examination of the entire proceedings relating to the effort to obtain the Aircraft...

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27 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
    ...or federal, asserts governmental or "executive" privilege 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, ......
  • 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
    • April 28, 1986
    ...of his claim that the government is privileged to refuse to comply 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 ......
  • Branch v. Phillips Petroleum Co., No. 80-2015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 5, 1981
    ...lawsuit and asserts some governmental privilege to resist release of the subpoenaed material. See, e. g., Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir. 1973); Fears v. Burris Manufacturing Co., 436 F.2d 1357, 1360 n.2 (5th Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 3......
  • Ala. Educ. Ass'n v. Bentley (In re Hubbard), Nos. 13–10281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 14, 2015
    ...right of immediate appeal to the government even when it is itself in custody of the subpoenaed material”); Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir.1973) (“[D]iscovery orders may be appealable when an executive privilege is involved and the executive or governmental agency ......
  • Request a trial to view additional results
27 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
    ...or federal, asserts governmental or "executive" privilege 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, ......
  • 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
    • April 28, 1986
    ...of his claim that the government is privileged to refuse to comply 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 ......
  • Branch v. Phillips Petroleum Co., No. 80-2015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 5, 1981
    ...lawsuit and asserts some governmental privilege to resist release of the subpoenaed material. See, e. g., Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir. 1973); Fears v. Burris Manufacturing Co., 436 F.2d 1357, 1360 n.2 (5th Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 3......
  • Ala. Educ. Ass'n v. Bentley (In re Hubbard), Nos. 13–10281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 14, 2015
    ...right of immediate appeal to the government even when it is itself in custody of the subpoenaed material”); Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir.1973) (“[D]iscovery orders may be appealable when an executive privilege is involved and the executive or governmental agency ......
  • Request a trial to view additional results

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