Cromaglass Corporation v. Ferm

• Decision Date: 27 June 1972
• Docket Number: Civ. A. No. 71-23.
• Citation: 344 F. Supp. 924
• Parties: CROMAGLASS CORPORATION, Plaintiff, v. Carl FERM et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

344 F. Supp. 924

CROMAGLASS CORPORATION, Plaintiff, v. Carl FERM et al., Defendants.

Civ. A. No. 71-23.

United States District Court, M. D. Pennsylvania.

June 27, 1972.

Candor, Youngman, Gibson & Gault, Williamsport, Pa., Pattison, Wright & Pattison, Bethesda, Md., for plaintiff.

Stuart, Murphy, Hager & Smith, Williamsport, Pa., Peter N. Lalos, Nathaniel A. Humphries, Mason, Fenwick & Lawrence, Washington, D.C., for defendants.

OPINION

MUIR, District Judge.

The questions in this case are whether the Plaintiff has violated an order of this court directing it to answer certain interrogatories and, if so, what sanctions will be imposed. We find the Plaintiff in willful violation of the order and sanctions will be imposed for civil contempt. This opinion does not deal with the criminal contempt, if any, of Plaintiff, its president, and its patent attorney, which is the subject of a separate, pending proceeding. This court has power to impose sanctions for a civil contempt which are remedial in nature to correct a wrong to a party as well as sanctions for a criminal contempt which are punitive in nature. Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir., 1968).

This action was instituted by the Cromaglass Corporation for (a) infringement of certain patents; (b) falsely marking advertising literature with the notation "patent pending"; and (c) unfairly competing with the Plaintiff by misappropriation of certain trade secrets of the Plaintiff.

On June 4, 1971, Defendants propounded interrogatories to Plaintiff. Plaintiff objected to Interrogatories Nos. 20, 21, and 24. The case was thereafter assigned to the undersigned judge who entered an order on October 4, 1971, relating to objections to interrogatories, among other things, which provided in Paragraph 1.4 that unless a brief in support of the objections to interrogatories were filed by October 19, 1971, the objections to interrogatories would be deemed withdrawn. The Plaintiff filed no brief in support of its objections to interrogatories. Despite that fact, the case was treated until March 22, 1972, the date of the order violated, as though the objections had not been withdrawn. Defendants filed a motion for an order compelling Plaintiff to answer the interrogatories and also served a request for the production of certain documents and entry upon the premises of Plaintiff for inspection and other purposes. Plaintiff objected to the production of certain of such documents and entry upon its premises.

On January 20, 1972, the court granted Defendants' motion for an order compelling answers with respect to Interrogatories 20, 24, and 25 subject to conditions to be approved by the court to minimize unnecessary disclosure thereof, setting no date for compliance but directing counsel for the parties to submit in writing to the court proposals as to such conditions by January 31, 1972. The defendants timely filed their proposals. The Plaintiff never filed any proposals whatsoever. On March 22, 1972, the Court entered an order directing Plaintiff to answer Interrogatories Nos. 20, 21, 24, and 25 within thirty (30) days, subject to certain secrecy restrictions in Plaintiff's favor, directing Plaintiff to produce some of the documents requested, also subject to secrecy restrictions, and directing counsel for both parties to submit to the Court within seven days specific proposals concerning the inspection and photographing of parts of Plaintiff's premises. In particular, Plaintiff was directed to include in its proposal a description of the physical limitations to which such inspection and photographing should be restricted, disclosure restriction requirements, and the date, time and duration of the inspection. The order provided that upon receipt of proposals from each party, the court would enter a further order fixing the date, time and conditions for the inspection and photographing of Plaintiff's premises.

Defendants complied with the Court's order by filing their proposals, asking that the Court designate the areas to be inspected with reasonable particularity. Plaintiff, however, again failed to file a written proposal with the Court as directed and the Court was thus unable to issue an order for inspection of the premises which described the premises with particularity. The parties apparently thought they had agreed upon a date and conditions for the inspection and photographing of Plaintiff's premises, but on the agreed date, April 24, 1972, a substantial dispute arose as to the inspection and photographing.

While the declination of Plaintiff to submit a proposal for inspection and photographing of its premises is inexcusable, it does not warrant grant of Defendants' motion for sanctions for failure of Plaintiff to afford Defendants full access to Plaintiff's premises.

On April 24, 1972, Plaintiff filed purported answers to Interrogatories Nos. 20, 21, 24, and 25 which are the gravamina of Defendants' motion for sanctions.

In Sub-Paragraph (8) of Count IV of the Complaint, Plaintiff alleged that Defendant Plast-A-Form Corporation, utilizing all of the confidential and specialized knowledge and information respecting the fabrication and sale of aerobic sewage treatment acquired by Defendant Carl Ferm while in the employ of The Cromar Company, Plaintiff's predecessor, initiated the manufacture and sale of a household aerobic sewage treatment unit incorporating the design and construction features of a unit which Carl Ferm had designed for The Cromar Company while employed by it.

Interrogatory No. 20 reads as follows: "Identify and fully describe all `confidential and specialized knowledge and information' referred to in Sub-Paragraph (8) of COUNT IV of the Complaint." Plaintiff originally objected to the interrogatory on the ground that to answer would result in public disclosure of confidential knowledge and information. The Court ordered Plaintiff to answer this Interrogatory, subject to a secrecy protection for Plaintiff. Plaintiff then answered the interrogatory as follows: "The confidential and specialized knowledge and information referred to in Sub-Paragraph (8) of Count IV of the Complaint intends to refer to that information accumulated by plaintiff and its predecessor at great cost and expense pertaining to all of the materials, and suppliers thereof, utilized in the fabrication of aerobic sewage treatment equipment and to the names and addresses of customers and potential customers, dealers and distributors and health department officials, all accumulated at great cost and expense to plaintiff during the period of employment of Carl Ferm by Plaintiff and plaintiff's predecessor."

Interrogatory No. 21 reads as follows: "Identify all known documents describing or including any information about `the confidential and specialized knowledge and information respecting the fabrication and sale of aerobic sewage treatment equipment' as set forth in Sub-Paragraph (8) of COUNT IV of the Complaint." The preliminary instructions on page 2 of Defendants' Interrogatories provided that when asked to "identify" a document, Plaintiff describe the document sufficiently to enable the identification of such document in a motion for the production of documents under Rule 34, including the description, the date and general nature and subject matter of the document, the names and addresses of the author "and/or" addressee and of each person receiving a copy of the document, and a place where and the name of each person in whose custody or control a copy of such document might be found, or the name and address of the person who last had custody or control of such document. Plaintiff originally objected to answering this interrogatory on the grounds that to do so would be unduly burdensome. The Court ordered Plaintiff on March 22, 1972 to answer Interrogatory No. 21, subject to a secrecy protection for Plaintiff. In response to the order, Plaintiff answered such interrogatory as follows: "All of those documents constituting the files of plaintiff containing or relating to that knowledge and information identified in Answer to Interrogatory 20."

Interrogatory No. 24 reads as follows: "Describe each and every aspect of the fabrication of Defendants' aerobic sewage treatment equipment which Plaintiff asserts in Sub-Paragraph (8) of COUNT IV of the Complaint to involve `confidential and specialized knowledge and information' of Plaintiff." Initially, Plaintiff objected to Interrogatory No. 24 on the ground that such answer would require Plaintiff publicly to disclose trade secrets. Pursuant to the Court's Order of March 22, 1972, directing Plaintiff to answer Interrogatory No. 24, subject to a secrecy protection for Plaintiff, Plaintiff answered as follows: "The confidential and specialized knowledge and information involved in the fabrication by defendant is that knowledge and information described in Answer to Interrogatory 20 which was acquired by defendant Carl Ferm while in the employ of plaintiff's predecessor."

Interrogatory No. 25 reads as follows: "Describe all aspects of the sale of Defendants' aerobic sewage treatment equipment which Plaintiff contends to involve `confidential and specialized knowledge and information' to which Plaintiff is asserting a right in Sub-Paragraph (8) of COUNT IV of the Complaint." Initially, Plaintiff responded to this Interrogatory by...