Dole v. Local 1942, Intern. Broth. of Elec. Workers, AFL-CIO
| Decision Date | 28 February 1989 |
| Docket Number | No. 88-1610,D,AFL-CI,88-1610 |
| Citation | 870 F.2d 368 |
| Parties | 130 L.R.R.M. (BNA) 2850, 111 Lab.Cas. P 11,055, 27 Fed. R. Evid. Serv. 989 Elizabeth DOLE, Secretary of Labor, United States Department of Labor, * Plaintiff-Appellant, v. LOCAL 1942, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,efendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Helene Boetticher, Office of the Sol., Dept. of Labor, Washington, D.C., for plaintiff-appellant.
Joel A. D'Alba, Asher Pavalon Gittler & Greenfield, Ltd., Chicago, Ill., for defendant-appellee.
Before CUMMINGS, POSNER and FLAUM, Circuit Judges.
The Secretary of Labor ("Secretary") appeals from the involuntary dismissal of a civil action under Section 401 of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. Sec. 481 et seq., brought by the Secretary against Local 1942 of the International Brotherhood of Electrical Workers ("Union"). The dismissal by the district court resulted from the Secretary's refusal to comply with a discovery order instructing her to release the names of individuals who gave witness statements to the Secretary's agents. The Secretary argues that because the Union did not establish a particularized showing of need, the identities of those individuals are protected by the informer's privilege; consequently, it was an abuse of discretion for the district court to order production, as well as dismiss the action when the Secretary refused to comply. We agree with the Secretary and reverse the decision of the district court.
On June 17, 1986, the Union held an election of officers subject to the provisions of Title IV of the LMRDA, 29 U.S.C. Sec. 481 et seq. Edward Keller, a member of the Union and unsuccessful nominee for Union president, 1 filed an internal union complaint protesting the election, which was not acted upon by the Union, and later complained to the Department of Labor, which resulted in this suit.
Keller objected to a decision by the local leadership, 2 announced one day prior to the May 13, 1986, nomination meeting, to enforce a then suspended rule which required all candidates for office to have attended a minimum number of meetings during the previous year. The decision to enforce the rule resulted in the disqualification of several candidates, among them Keller. This prompted a written protest by more than six hundred Union members in May; Keller was among those protesting. The Union denied these protests on June 3, 1986. On June 23, 1986, one week after the election, Keller filed an internal union appeal. The Union failed to resolve Keller's appeal by September 23, 1986, and Keller accordingly became eligible to file a written complaint with the Department of Labor under 29 U.S.C. Sec. 482, 3 which he did on that date. After investigating Keller's complaint, the Secretary filed this action against the Union in federal district court challenging the decision to enforce the nomination rule as a violation of 29 U.S.C. Sec. 481(e) requiring candidacy qualifications to be "reasonable * * * [and] uniformly imposed."
During discovery the Union requested certain information from the Secretary through interrogatories. A discovery dispute, which remains the crux of this appeal, developed over the Union's request for the identity of those Union members who participated in the investigation and for the production of all documents relating thereto. The Secretary refused to answer those interrogatories (or parts thereof) which sought to ascertain the identities of those Union members who assisted the Department of Labor in its investigation, as well as the information they provided. The Secretary's objections were based upon the premise that:
such information is protected from disclosure by the informer's privilege and work product privilege and therefore is not subject to discovery under Rule 26(b)(1) and Rule 26(b)(3) of the Federal Rules of Civil Procedure.
(R. Item 19, attachment). However, in response to two other interrogatories, the Secretary did produce a list of those individuals who had knowledge of information, documents or communications relating to the complaint filed by Keller with the Secretary. In a preface to the list of twenty-five individuals with possible "knowledge of the facts of this case," only six of whom were local rank and file members, the Secretary replied that no representation was being made that:
[the Department of Labor] did, in fact, speak to any of these persons or, in any other way, does [the Department of Labor] identify any of them as providing information to the [Department of Labor] during the course of [the] investigation. Such response is not intended to be a waiver of the informer's privilege with respect to the identity of any individuals actually interviewed during the course of [the] investigation.
(Idem ). Consequently, the Union has discovered the identity of those persons of whom the Department of Labor is aware with relevant information concerning Keller's complaint, including six of his colleagues. But the Union maintains that it is still entitled to the identities of other Keller colleagues who gave information relevant to the election in issue to the Department of Labor, as well as the substance of the information.
The Secretary filed a motion for a protective order against the release of the information, citing the informer's privilege. In support of its motion to compel disclosure of the informers' statements, the Union argued that the statements were required to defend against the allegation in the complaint that the election protest was filed with the Secretary of Labor in a timely manner. According to the Union such statements might enable it to determine if Keller or anyone else had initiated internal union remedies prior to June 23, 1986, the date Keller filed his complaint with the Union (R. Item 19 at 3-4). 4 The Union argues that this information may establish that either Keller or others acting in concert with Keller approached the Department of Labor following the preelection protest, which was denied by the Union on June 3, 1986. Such information conceivably could show that the Department of Labor received an earlier complaint. This argument is grounded on 29 U.S.C. Sec. 482(a), which requires the Secretary to bring a civil action within sixty days of receipt of a complaint from a union member. The Union argues that if it can establish that a "complaint" was received by the Department earlier than September 23, 1986, the date of Keller's complaint, the Secretary's present action is time-barred.
Further, since the LMRDA does not define "complaint," the Union argues that typical formalities, e.g., a signed writing, may not be necessary for a complaint to the Department as envisioned by the LMRDA. Thus the Union maintains that it should be allowed to discover all informer statements to determine if a "complaint," however defined, was filed prior to the one which triggered this lawsuit. The Union also argues that if the witness statements reveal that the Department of Labor intentionally dissuaded anyone from filing a complaint until after the election, such administrative action could also be tantamount to a complaint for the purpose of computing the start of the time limitations period.
The district court, over the Secretary's objection, granted the Union's motion to compel disclosure and denied the Secretary's motion for a protective order on December 21, 1987. On a hearing for reconsideration on January 7, 1988, the district court maintained its decision to grant the Union's motion to compel, but indicated that it would enter a protective order forbidding counsel for the Union from disclosing the resulting information to Union officials.
On January 23, 1988, with the order to compel in effect, counsel for the Union deposed an employee of the Department of Labor. Upon advice of counsel from the Department of Labor, the deposition witness declined to respond to questions from the Union's counsel which were designed to elicit information concerning the names of individuals who provided witness statements to the Department of Labor. Thereafter the Union moved to dismiss the lawsuit, which the district court granted on January 26, 1988, because of the failure of the Secretary to comply with the discovery order.
District courts have broad discretion in matters relating to discovery. Brown-Bey v. United States, 720 F.2d 467, 470-471 (7th Cir.1983); Eggleston v. Chicago Journeymen Plumbers' Local Union 130, 657 F.2d 890, 902 (7th Cir.1981), certiorari denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134. On review, courts of appeal will only reverse a decision of a district court relating to discovery upon a clear showing of an abuse of discretion. Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 183 (7th Cir.1985). Similarly, Federal Rule of Civil Procedure 37(b) permits a district court to dismiss a case upon a showing of "willfulness bad faith or fault on the part of the non-complying party." National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (per curiam ); Societe Int'l v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255; Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1179 (7th Cir.1987). The decision of a district court to dismiss a case under Rule 37(b) is also reviewed under the abuse of discretion standard. National Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780; Sere v. Board of Trustees of Univ. of Illinois, 852 F.2d 285, 289 (7th Cir.1988). These apparently distinct actions meld into a single analysis if the district court abused its discretion in formulating a discovery order, because, a fortiori, such an abuse of discretion will not support a Rule 37(b) dismissal.
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