Food Lion, Inc. v. United Food and Commercial Workers Intern. Union, AFL-CIO-CLC
| Decision Date | 10 January 1997 |
| Docket Number | AFL-CIO-CLC,Nos. 96-7076,96-7077 and 96-7085,s. 96-7076 |
| Citation | 103 F.3d 1007 |
| Parties | 154 L.R.R.M. (BNA) 2144, 322 U.S.App.D.C. 301, 65 USLW 2464, 36 Fed.R.Serv.3d 1364 FOOD LION, INCORPORATED, Appellee, v. UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,, et al., United Steelworkers of America,, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Nos. 95ms00011, 95ms00303).
Earl J. Silbert, Washington, DC, argued the cause, for appellants United Steelworkers of America and 1199 National Health and Human Service Employee Union, with whom Richard J. Oparil, Washington, DC, was on the briefs.
George Wiszynski, Washington, DC, argued the cause and filed the briefs, for appellant The Kamber Group.
Charles L. Warren, Washington, DC, argued the cause, for appellee. Richard L. Wyatt, Jr. and Larry E. Tanenbaum were on the brief. Anthony T. Pierce, Washington, DC, entered an appearance.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
The two discovery disputes at issue here, which have been consolidated for appeal, arise out of an abuse of process case pending in the United States District Court for the District of South Carolina ("the abuse of process case"). 1 In that pending case, Food Lion, Inc. ("Food Lion"), a grocery store chain, brought suit against the United Food and Commercial Workers International Union, AFL-CIO-CLC ("UFCW"), alleging that UFCW abused process by bringing yet another suit ("the Bryant litigation") 2 with the illicit "ulterior purpose" of "destroy[ing]" Food Lion, which is a non-unionized company. A0101-05 (Doc. 1, Ex. 1).
In the course of litigating the abuse of process case, Food Lion issued the two subpoenas which gave rise to the present controversies. In the first subpoena ("the Fingerhut subpoena"), Food Lion sought discovery from Fingerhut (a third-party public relations firm that served as a consultant to UFCW) which included, inter alia, fourth-party documents relating to other unions' "corporate campaigns" against other employers. These fourth-party documents were unrelated to either Food Lion or UFCW. Food Lion moved to enforce this subpoena in an ancillary proceeding in the United States District Court for the District of Columbia, and its motion was granted. In the March 18, 1996 order challenged here, the district court denied motions by intervenors United Steelworkers of America, AFL-CIO-CLC ("Steelworkers"), and 1199 National Health and Human Service Employees Union ("1199") to modify the court's prior order granting Food Lion's motion to compel such documents. The court refused to reconsider its prior ruling that the fourth-party documents covered by the subpoena were relevant to the abuse of process litigation and therefore must be produced by Fingerhut. A0034-35; A0036-37. The court also reaffirmed its November 14, 1995, protective order prohibiting Food Lion from using the fourth-party documents outside of the abuse of process litigation. A0035; A0037. On appeal, appellants argue that the district court erred in holding that the fourth-party documents were relevant, and that the protective order is insufficient to safeguard the unions' confidentiality interests in those documents.
The second subpoena ("the Kamber subpoena"), issued by Food Lion to The Kamber Group ("Kamber"), 3 was substantively similar to the Fingerhut subpoena--although the district court ultimately ruled that Kamber was not required to produce documents that were unrelated to either Food Lion or UFCW. After numerous disagreements between Food Lion and Kamber about the legitimate breadth of the subpoena, Food Lion sought to enforce the subpoena in another ancillary proceeding in the District Court for the District of Columbia. On September 5, 1995, the district court granted Food Lion's motion to enforce the subpoena, and gave Kamber ten days in which to comply. A0024-25. After Kamber allegedly failed to comply with this order, the district court on March 19, 1996, granted Food Lion's motion to hold Kamber in contempt. A0038-40. The court sanctioned Kamber for failing to produce various documents in its off-site storage boxes until long after the specified deadline for producing the documents had passed. The court ordered that Kamber produce all documents covered by the order, pay $1000 per diem until the order was complied with, and compensate Food Lion for legal fees and expenses relating to Kamber's noncompliance. A0039-40. The district court has not yet issued a final order as to the extent of Kamber's liability to Food Lion. On appeal, Kamber claims that it should not have been held in contempt because the record lacked clear and convincing evidence of any bad faith on Kamber's part, and because Kamber complied fully and in good faith with the district court's order compelling production.
With regard to the Fingerhut subpoena, we conclude that the district court erred in holding that nonparty union documents unrelated to either Food Lion or UFCW were relevant for discovery purposes in the abuse of process litigation. With regard to the Kamber subpoena, we affirm the district court's decision to hold Kamber in contempt of court for its unexcused tardiness in producing documents subject to the order that were eventually found in Kamber's off-site storage. We do not address the appropriateness of the amount of damages that Kamber is obligated to pay to Food Lion in compensation for Kamber's past contempt because the district court has not yet issued a final order on this question.
Both the Fingerhut and the Kamber subpoenas have complicated procedural histories. The Fingerhut controversy originated after Food Lion served the Fingerhut subpoena on December 27, 1994. On September 15, 1995, Food Lion moved to enforce the subpoena in an ancillary proceeding in the D.C. federal district court. The D.C. district court granted this motion on November 14, 1995, and issued an order directing Fingerhut to comply with the subpoena by producing not only documents relating to corporate campaigns by UFCW against other employers, but also documents relating to "corporate campaigns" of other union-clients against employers other than Food Lion. Among the other union-clients were Steelworkers and 1199, neither of which had any relationship to Food Lion. The district court also issued a protective order directing that "Food Lion shall use compelled documents that do not relate to Food Lion or the UFCW only in the litigation underlying this case." A0029.
Although the district court denied Fingerhut's motion to reconsider, it granted the motions of Steelworkers and 1199 to intervene in the proceedings. However, on March 18, 1996, the court denied the intervenors' motions to modify its order compelling production of documents relating to these two unions. A0034-37. The court offered two rationales for its decision:
(1) "[D]ocuments related to corporate campaigns that do not involve either Food Lion or the UFCW are relevant to Food Lion's ability to demonstrate that the UFCW engaged in a corporate campaign against it because these documents may show that the types of actions engaged in by other unions in other corporate campaigns were also engaged in by the UFCW against Food Lion"; and
(2) "[B]ecause Food Lion has faced difficulty in obtaining documents related to the UFCW corporate campaign against Food Lion, documents related to other corporate campaigns will assist ... in determining what types of documents are missing from prior and future productions."
A0034, A0036. Subsequently, the two unions filed the instant appeal. On May 1, 1996, this circuit granted the unions' motions for stay of enforcement pending appeal.
The Kamber controversy arose out of a similar subpoena that was issued to Kamber by Food Lion on September 22, 1994. On January 12, 1995, Food Lion moved the D.C. district court to enforce the Kamber subpoena. Kamber responded to this motion on January 30, 1995, claiming that, subject to a single objection (involving documents unrelated to Food Lion, UFCW, or the underlying abuse of process case), 4 it had complied fully with the subpoena. A0064, A0118-19. On September 5, 1995, the district court granted Food Lion's motion to compel, overruling all of Kamber's objections and giving Kamber ten days in which to produce all documents covered by the subpoena. A0133-34.
On November 16, 1995, Food Lion moved to hold Kamber in contempt. The district court granted this motion on March 19, 1996. 5 At issue in the contempt ruling were a number of off-site storage boxes which Kamber allegedly neglected to search during the ten-day period specified in the order. In explaining why Kamber should be held in contempt, the court stated that, "[a]t the time of Food Lion's last filing on January 25, 1996, Kamber was just then undertaking a search of 600 boxes of documents in an off-site storage facility." A0039. The court ordered Kamber to "pay Food Lion, Inc. compensation for Food Lion's legal fees and expenses associated with obtaining Kamber's compliance with the subpoena." A0040. 6 Kamber did not file any additional documents in response to the district court's contempt order. Instead, on April 2, 1996, Kamber filed a sworn affidavit executed by its general counsel stating that Kamber's prior searches and productions had been complete and thorough, and had resulted in the production of all documents in Kamber's possession which fell under Food Lion's subpoena. Soon afterward, on April 17, 1996, Kamber appealed from the district court's contempt order, and this appeal was consolidated with the appeal arising out of the Fingerhut subpoena. This court has jurisdiction over the consolidated appeals under 28 U.S.C. §§ 1291 and 1294(1).
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