Hanley v. James McHugh Construction Company

• Decision Date: 30 December 1969
• Docket Number: No. 17623.,17623.
• Citation: 419 F.2d 955
• Parties: Roy D. HANLEY, Plaintiff, v. JAMES McHUGH CONSTRUCTION COMPANY, Defendant-Appellant, v. Honorable William J. LYNCH, United States District Judge, and Elevator Service Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

419 F.2d 955 (1969)

Roy D. HANLEY, Plaintiff, v. JAMES McHUGH CONSTRUCTION COMPANY, Defendant-Appellant, v. Honorable William J. LYNCH, United States District Judge, and Elevator Service Company, Defendants-Appellees.

No. 17623.

United States Court of Appeals Seventh Circuit.

December 30, 1969.

C. Roy Peterson, Clark Chapman King, Jr., Chicago, Ill., for defendant-appellant; Lord, Bissell & Brook, Chicago, Ill., of counsel.

Tom L. Yates, Chicago, Ill., for defendants-appellees; Frederic L. Goff, Chicago, Ill., of counsel.

Before DUFFY, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

KILEY, Circuit Judge.

Defendant McHugh Construction Company was found guilty of criminal contempt and fined $100.00 for refusal to comply with the district court's discovery order¹ to produce for Elevator Service Company several statements of witnesses related to Hanley's personal injury action against McHugh,² in which McHugh counterclaimed against Elevator. The statements sought were given by employees of both McHugh and Elevator. We reverse the contempt order.

The main issue presented to us is whether the discovery order upon which the contempt charge is based is valid in light of the requirement of Rule 34 that "good cause" must be shown for the production of documents.

Elevator raises a preliminary question: whether in testing the validity of the contempt order we may reach the issue of the validity of the underlying discovery order. Elevator contends that where a court has jurisdiction and power to enter the discovery order, the order must be obeyed. It relies on Blake v. Nesbet, 144 F. 279, 284 (W.D.Mo. 1905), where a district court said that a temporary injunction must be obeyed, however erroneous, and that the contemnor was not justified in disobeying on the ground that the restraining order was an abuse of discretion. The court applied the well established rule that a defendant who has disobeyed an injunction cannot purge himself of contempt by going into the merits of the injunction. However, Elevator's reliance on that decision is misplaced. We do not have before us an injunction with a right of appeal.

A discovery order is immediately appealable only under 28 U.S.C. 1292(b) upon the written opinion of the trial judge that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation * * *." There is no written opinion to that effect in the discovery order before us. Thus, in order that the merits of the contempt order be properly reviewed, we believe the law is clear that a judgment of criminal contempt for refusal to comply with a discovery order is a final judgment and immediately reviewable. We hold that we need not limit our review to the criminal contempt order itself, but may test the validity of the underlying discovery order. Union Tool Co. v. Wilson, 259 U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922); Southern Railway Co. v. Lanham, 403 F.2d 119, 125 (5th Cir. 1968, petition for rehearing denied, 408 F.2d 348 (1969); Hickman v. Taylor, 153 F. 2d 212, 214 n.1 (1945), aff'd, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

We turn now to the "good cause" issue. The discovery order under consideration here is based on the ground stated in an affidavit of Elevator's counsel that the statements sought were given by persons "present at the scene and the contents of the statements might well constitute evidence in the cause." No other reasons for production were offered, and the district court found "good cause" shown on the basis of the affidavit. We hold that the stated reasons are insufficient to meet the requirement of a "good cause" showing in Rule 34.

The Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1969), while construing the "good cause" provision in Rule 35³ as requiring an affirmative showing of some need other than mere relevance, discussed the similar provision in Rule 34:

The courts of appeals in other cases have also recognized that Rule 34\'s good-cause requirement is not a mere formality, but is a plainly expressed limitation on the use of that Rule. Id. at 118, 85 S.Ct. at 242.

Recently, the Fifth Circuit in Southern Railway co. v. Lanham, 403 F.2d 119, 127 (1968), considered the ...