In re Flat Glass Antitrust Litigation
| Citation | 288 F.3d 83 |
| Decision Date | 26 April 2002 |
| Docket Number | No. 01-3081.,No. 01-3091.,01-3081.,01-3091. |
| Parties | In re FLAT GLASS ANTITRUST LITIGATION (MDL No. 1200). Brian S. Nelson, d/b/a Jamestown Glass Service; Mel's Auto Glass, Inc.; A. Waxman & Co., on behalf of itself and all others similarly situated; Designer Windows, Inc., on behalf of itself and all others similarly situated; Moses Moore All Glass Aspects, Inc., on behalf of itself and all others similarly situated; AAA Glass, Inc., on behalf of itself and all others similarly situated, d/b/a The Glass Doctor; The Lurie Companies, Inc.; VSTB Enterprises, Inc., d/b/a Perfecto Auto Glass & Upholstery and its successors; Port City Glass & Mirror, Inc., on its own behalf and on behalf of all others similarly situated; John Healy, Jr.; County Auto Glass, Inc., on behalf of themselves and all others similarly situated; Gerard J. Clabbers, on behalf of himself and all others similarly situated; Kirschner Corporation, Inc., t/a Berwyn Glass Company, on behalf of itself and all others similarly situated; Hartung Agalite Glass Co., d/b/a Hartung Glass Industries; All Star Glass, Inc., on behalf of itself and all others similarly situated; Superior Windshield Installation, Inc., on its own behalf and on behalf of all others similarly situated; Jovi, Inc., on behalf of itself and all others similarly situated, t/a Easton Area Glass; Engineered Glass Walls, Inc., on behalf of itself and all others similarly situated; Bailes Glass Co.; Interstate Glass Distributors, Inc., on behalf of itself and all others similarly situated; Orlando Auto Top, Inc.; Mayflower Sales Co., Inc., on behalf of itself and all others similarly situated; Cardinal IG; Reed's Body Shop, Inc.; Beletz Brothers Glass Company, Inc.; Complast, Inc.; Western States Glass, on behalf of itself and all others similarly situated; Grimes Auto Glass, Inc.; D & S Glass Services, Inc.; George Brown & Son Glass Works, Inc.; Thermal Chek, Inc.; Mobile Glass, Inc., individually and as a representative of a class; Jeld-Wen, Inc., an Oregon corporation; Jeld-Wen Canada Limited, a Canadian corporation; Jeld-Wen Arizona, Inc., an Arizona corporation; Avanti Industries, Inc., an Arizona corporation; Lakewood City Glass, Inc.; Carolina Mirror; Allstate Insurance Company; Allstate Indemnity Company, v. Pilkington PLC; Pilkington Libbey-Owens-Ford Co., Inc.; AFG Industries, Inc.; Guardian Industries Corporation; PPG Industries, Inc.; Libbey-Owens-Ford Co., Inc.; Ashai Glass Co., Ltd.; Ford Motor Co.; Pilkington Holdings; Ashai Glass America, Inc.; United States of America (Intervenor in D.C.) (D.C. No. 97-mc-00550). *Edward Bryant, Appellant, *Ronald W. Skeddle, Appellant. *Pursuant to Rule 12(a), F.R.A.P. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
J. Michael Murray (Argued), Berkman, Gordon, Murray & DeVan, Cleveland, OH, Attorney for Appellant, Edward Bryant.
Michael S. Sommer (Argued), McDermott, Will & Emery, New York, NY, Attorney for Appellant, Ronald W. Skeddle.
David E. Romine (Argued) Fine, Kaplan & Black, Philadelphia, PA, Robert N. Kaplan, Kaplan, Fox & Kilsheimer, New York, NY, Attorneys for Appellees, Brian S. Nelson, d/b/a Jamestown Glass Service; Mel's Auto Glass, Inc.; A. Waxman & Co., on behalf of itself and all others similarly situated; Designer Windows, Inc., on behalf of itself and all others similarly situated; Moses Moore All Glass Aspects, Inc., on behalf of itself and all others similarly situated; AAA Glass, Inc., on behalf of itself and all others similarly situated, d/b/a The Glass Doctor; The Lurie Companies, Inc.; VSTB Enterprises, Inc., d/b/a Perfecto Auto Glass & Upholstery and its successors; Port City Glass & Mirror, Inc., on its own behalf and on behalf of all others similarly situated; County Auto Glass, Inc., on behalf of themselves and all others similarly situated; Gerard J. Clabbers, on behalf of himself and all others similarly situated; Kirschner Corporation, Inc., t/a Berwyn Glass Company, on behalf of itself and all others similarly situated; All Star Glass, Inc., on behalf of itself and all others similarly situated; Superior Windshield Installation, Inc., on its own behalf and on behalf of all others similarly situated; Jovi, Inc., on behalf of itself and all others similarly situated, t/a Easton Area Glass; Engineered Glass Walls, Inc., on behalf of itself and all others similarly situated; Bailes Glass Co.; Interstate Glass Distributors, Inc., on behalf of itself and all others similarly situated; Mayflower Sales Co., Inc., on behalf of itself and all others similarly situated; Cardinal IG; Reed's Body Shop, Inc.; Beletz Brothers Glass Company, Inc.; Complast, Inc.; Western States Glass, on behalf of itself and all others similarly situated; Grimes Auto Glass, Inc.; D & S Glass Services, Inc.; George Brown & Son Glass Works, Inc.; Thermal Chek, Inc.
David J. Hickton, John G. Wall, Burns, White & Hickton, Pittsburgh, PA, Peter S. Ehrlichman, Michael K. Vaska, Foster, Pepper & Shefelman, Seattle, WA, Attorneys for Appellees, Jeld-Wen, Inc., an Oregon corporation; Jeld-Wen Canada Limited, a Canadian corporation; Jeld-Wen Arizona, Inc., an Arizona corporation; Avanti Industires, Inc., an Arizona corporation.
David J. Armstrong, Dickie, McCamey & Chilcote, Pittsburgh, PA, Paul M. Dodyk, Cravath, Swaine & Moore, New York, NY, Attorneys for Appellee, PPG Industries, Inc.
Before: SCIRICA and BARRY, Circuit
Judges, and MUNLEY, District Judge.**
This is an appeal from an order compelling document production from a nonparty witness in a consolidated, multidistrict class action. The principal issue is whether a nonparty witness may appeal a discovery order without a citation for contempt.
In 1995, a federal grand jury indicted Ronald Skeddle and Edward Bryant for conspiracy, mail and wire fraud, and money laundering. Skeddle had been president and chief executive officer of Libbey-Owens Ford Co., the second-largest flat glass manufacturer in the United States. Bryant was Libbey-Owens Ford's second-highest ranking officer. All criminal charges against them were either dismissed or resulted in acquittal. But at their trial in 1997, Skeddle and Bryant accused Libbey-Owens Ford of conspiring to fix, maintain, and stabilize the price of all glass products sold in interstate and foreign commerce.
Federal prosecutors in different jurisdictions investigated the antitrust allegations against Libbey-Owens Ford. In 1998, under grants of immunity, Skeddle testified before a grand jury in the Northern District of Texas, and Bryant testified before a grand jury in the Eastern District of Michigan. The grand juries disbanded without returning indictments.
In 1997, several private antitrust suits were filed alleging Libbey-Owens Ford and other flat glass manufacturers violated the Sherman Act and the Clayton Act. The Judicial Panel on Multidistrict Litigation consolidated and transferred the actions to the Western District of Pennsylvania, which certified a class of individuals and entities who purchased flat glass products or automotive replacement glass from defendants between August 1, 1991 and December 31, 1995. In re Flat Glass Antitrust Litig., 191 F.R.D. 472 (W.D.Pa.1999). The amended complaint alleges defendants concealed a price-fixing conspiracy until Skeddle and Bryant exposed it during their criminal trial. In February 2000, the District Court approved settlements between the class and four defendants. In re Flat Glass Antitrust Litig., No. 97-550, MDL No. 1200 (W.D.Pa. Feb.9, 2000). But the class still has certain outstanding claims.
In March 2001, class plaintiffs served subpoenae duces tecum on Skeddle and Bryant for depositions and documents. Neither Skeddle nor Bryant is a defendant in what remains of the consolidated class action. At deposition both men invoked their Fifth Amendment privileges against self-incrimination. Plaintiffs' motions to compel were denied. After plaintiffs served Skeddle a second subpoena, Skeddle and Bryant produced certain documents, but withheld others on attorney-client or work-product-doctrine grounds. Each produced a privilege log.
In June 2001, plaintiffs filed a motion to compel Skeddle and Bryant to produce documents for which they claimed attorney-client privileges. Denying the motion, the District Court ordered production of other attorney-work-product documents, finding plaintiffs had shown a "substantial need," for which "substantial equivalent[s]" could not be obtained without "undue hardship."1 This appeal followed.2
Generally, discovery orders are not final orders reviewable under 28 U.S.C. § 1291. At issue here is whether an order compelling a nonparty to produce documents allegedly protected by the attorney-work-product doctrine may be appealed. If not, we lack jurisdiction to consider these appeals unless Skeddle and Bryant are found in contempt of court.
Ordinarily we review final decisions of district courts. 28 U.S.C. § 1291.3 The finality requirement advances our interest in avoiding "piecemeal appeals" during ongoing proceedings. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). More than sixty years ago, the Supreme Court said the finality rule accords with the policy of "avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its inception to entry of judgment." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The finality rule promotes efficient administration. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
In Cobbledick, the Supreme Court established that a nonparty witness subpoenaed to testify before a grand jury must be held in contempt before challenging the order. 309 U.S. at 328, 60 S.Ct. 540. An...
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