Colonial Times, Inc. v. Gasch

Citation509 F.2d 517,166 U.S.App.D.C. 184
Decision Date03 January 1975
Docket NumberNo. 74--1349,74--1349
PartiesCOLONIAL TIMES, INC., d.b.a. The Daily Rag, Petitioner, v. Honorable Oliver GASCH, United States District Judge, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

E. Edward Bruce and Michael D. Barnes, Washington, D.C., were on the pleadings for petitioner.

Earl J. Silbert, U.S. Atty., John A. Terry and Steven R. Schaars, Asst. U.S. Attys., were on the brief for respondent.

Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.

BAZELON, Chief Judge:

Petitioner Colonial Times, Inc., publishes an 'underground' newspaper in the District of Columbia known as 'The Daily Rag.' The December 8, 1972 edition of 'The Daily Rag' displayed on its cover a sketch of an elderly woman, fully dressed, wearing a large lapel button expressing in harsh and graphic language disapproval of the District of Columbia food tax. United States Postal Service employees handling copies of this edition of 'The Daily Rag' objected to the cover and as a result four copies of 'The Daily Rag' were withdrawn from normal mail processing for attempted hand delivery by a Postal Service Special Investigator. The Postal Service took further action against 'The Daily Rag', actions which are the subject of conflicting allegations set out in more detail below. These actions, at least as they were perceived by petitioner, led it to file a complaint in District Court, seeking injunctive relief against any further interference from the Postal Service in the regular mail processing of 'The Daily Rag.' After filing this complaint petitioner sought to depose certain Postal Service employees by other than stenographic means, pursuant to Fed.R.Civ.P. 30(b)(4). 1 That Rule requires a party seeking depositions of this sort to obtain a court order authorizing the deposition. The District Court refused to issue such an order upon request and petitioner now moves this Court for a writ of mandamus to compel the District Court to grant the motion to take depositions by other than stenographic means. For reasons set out herein, we hold that the writ lies to review this particular refusal to enter an order permitting depositions by other than stenographic means, that the District Court has misapprehended the purpose of Rule 30(b)(4) and that the District Court should comply with the holdings of this opinion.

The factual disputes relevant to the purpose of the proposed depositions may be briefly stated. Petitioner alleges that in the course of hand delivery of the four copies of the December 8 edition, mentioned above, the USPS agent stated that the newspaper was obscene, advised the subscribers to refuse to accept delivery and generally coerced the subscribers by suggesting that intentional receipt of the paper might subject them to criminal prosecution. The Postal Service denies this characterization of the conversations between the agents and the subscribers, admitting only that the agent sought to recover from the subscriber a copy of the paper for investigative purposes. Petitioner also alleges that an Assistant Postal Inspector informed it that the December 8 edition would be submitted to the Department of Justice for appropriate action and that the Postal Service intended to contact all the paper's subscribers to convince them to refuse future delivery. Petitioner finally alleges that the Postal Service stated it intended to monitor future publications of 'The Daily Rag.' Even if these allegations are not proven, it would appear that petitioner has a substantial claim against the Postal Service. 2 However, proof of these allegations would at least bear on the nature and extent of any injunctive relief granted to petitioner. Petitioner's attempt to depose the Postal Service employees involved in the incidents alleged is relevant and necessary to this proof and thus to a resolution of the litigation. We first consider the nature of the District Court's error to lay the foundation for our discussion of the propriety of mandamus relief.

I.

We find that the District Court's construction of Rule 30(b)(4) is not consonant with the purposes of the Rule. The District Court denied petitioner's motion to take depositions by other than stenographic means for essentially two reasons: (1) the government objected; and (2) petitioner has not demonstrated that a manifest injustice would occur due to the expense of stenographic methods of deposition. 3 Both of these reasons were in turn supported by a general finding that the dangers to accuracy posed by depositions by other than stenographic means required the Court to take a restricted approach to the use of such alternative methods. These reasons do not support a blanket denial of petitioner's motion.

Subpart (b)(4) was added to Rule 30 in 1970 with a cryptic commentary, here set out in the margin. 4 The problem of interpretation raised by the Subpart and its commentary is a result of the fact that the rule states that the judge 'may' issue an order permitting depositions by other than stenographic means. The Rule does not state what grounds a trial judge may offer for a refusal to issue such an order. However, the Advisory Committee commentary, while far from lucid, does suggest that the reason for requiring an order--which is, of course, the source of the trial judge's discretion--is to ensure that appropriate safeguards are taken to ensure the accuracy of the deposition. It apparently rejects, as one would imply from the promulgation of Subpart (b)(4) in the first place, the notion that the dangers to accuracy are in the abstract sufficient reason for a denial of a motion to take depositions by other than stenographic means. The burden Rule 30(b)(4) would impose upon the trial judge is to cause the parties together to agree upon a mode of deposition taking which will be approximately as accurate as stenographic depositions and to review the parties' proposal once they have in good faith agreed. The District Judge by his outright rejection of petitioner's motion without specific consideration of the feasibility of proposed safeguards ignored this burden and ruled in a manner inconsistent with the purpose of Rule 30(b)(4). 5

The fact that the government objected to petitioner's motion and to the proposed method of deposition taking is not relevant to the issue of whether the motion should be denied outright. As a general proposition each party to a civil law suit has the right to take depositions of the other party, absent a protective order entered by the trial judge. 6 It is difficult to imagine that this amendment to Rule 30 would have altered this general rule without a more explicit statement that such was intended. The better view of the function of objection by a party correlates Rule 26(c) protective order considerations 7 with Rule 30(b)(4) motions. Under this view, the objection of a party is cause for the trial court to scrutinize the method of deposition taking to ensure that the problems of accuracy and trustworthiness are adequately handled by the movant's proposal, such that the opposing party's interests are not prejudiced. The opposing party has a similar duty to make specific objections to the proposed method of deposition taking and may not simply argue that every proposed method is insufficient.

Petitioner makes much of the fact that it and its counsel, the ACLU, do not have sufficient funds to take depositions by ordinary means. The District Court was not impressed by these claims of poverty and did not think that petitioner had made out a case of 'manifest injustice.' The ability of the movant to pay for stenographic depositions should, as a general matter, 8 be irrelevant to the grant of an order to take depositions by other than stenographic means. The Rule is designed to decrease everyone's stenographic costs whenever that can be accomplished with no loss of accuracy and integrity.

In sum, we conclude that 'experimentation with (Rule 30(b)(4)'s) newly authorized procedure should be encouraged rather than blocked . . ..' 9 We note that every reported District Court case ruling on the issue--with one exception noted in the margin--has adopted the view of Rule 30(b)(4) set out above. 10 Furthermore we have verified that six trial judges in this Circuit have permitted the taking of depositions by other than stenographic means. 11 Thus, the range of the trial judge's discretion under Rule 30(b) (4) is limited to those actions necessary to promote accuracy and trustworthiness. The judge may deny a movant's request under Rule 30(b)(4) only when he is convinced, after thorough examination of the movant's proposal and on the basis of the other party's specific objections and the judge's experience with the differing forms of deposition procedure, that the particulars of the request do not reasonably ensure accuracy equivalent to stenographic depositions. The District Judge in his decision did not make this sort of inquiry. It follows that in so doing he mistook the purpose of Rule 30(b)(4) and committed error.

One issue which must be confronted in further proceedings is whether the operator of the tape recorder or other non-stenographic recording device must be independent of the parties. 12 Pursuant to the view of Rule 30(b)(4) stated above, the function of the District Court is to review this particular issue to determine whether such an independent operator is necessary to preserve trustworthiness and accuracy. The independent operator would be a very significant if not the most significant expense in a deposition proceeding. Since the purpose of the Rule is to cut expense, the operator should be eliminated unless no alternatives exist to guarantee trustworthiness. Several safeguards which might provide an alternative to the independent operator have been suggested. First, the testimony may be recorded on two recorders and the opposing party may retain the tape from the...

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