National Util. Serv., Inc. v. Northwestern Steel & Wire Co.

• Decision Date: 22 May 1970
• Docket Number: No. 17795.,17795.
• Citation: 426 F.2d 222
• Parties: NATIONAL UTILITY SERVICE, INC., Plaintiff-Appellant, v. NORTHWESTERN STEEL AND WIRE CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

426 F.2d 222 (1970)

NATIONAL UTILITY SERVICE, INC., Plaintiff-Appellant, v. NORTHWESTERN STEEL AND WIRE CO., Defendant-Appellee.

No. 17795.

United States Court of Appeals, Seventh Circuit.

May 5, 1970.

Rehearing Denied May 22, 1970.

COPYRIGHT MATERIAL OMITTED

Thomas A. Keegan, Keegan & Gosdick, Rockford, Ill., John M. Foley, New York City, for plaintiff-appellant; Foley, Hickey, Gilbert & Currie, New York City, of counsel.

Hamilton Smith, James E. Betke, William G. Migely, Chicago, Ill., for defendant-appellee; McDermott, Will & Emery, Chicago, Ill., of counsel.

Before KILEY, CUMMINGS, and KERNER, Circuit Judges.

CUMMINGS, Circuit Judge.

This is a breach of contract action brought by National Utility Service, Inc., a New York corporation, against Northwestern Steel and Wire Company of Sterling, Illinois. In 1964, the parties executed a 5-year contract providing that plaintiff would make a technical investigation and analysis of the various factors in defendant's gas and utility rates and advise when reductions could be obtained. Defendant was obligated to pay a retainer fee of $1,000 and 50% of any savings secured by plaintiff. The complaint sought a judgment of $1,037,500 on the ground that pursuant to plaintiff's recommendations, defendant was obtaining $2,075,000 savings in the cost of gas purchased from Northern Illinois Gas Company from 1965 to 1970.

Defendant's amended answer denied that plaintiff made the required investigation and analysis, or that it made recommendations to defendant with respect to the gas rates defendant paid. The third affirmative defense charged fraud in that plaintiff "did not possess the qualifications it represented it had, did not intend to conduct the technical investigation and analysis it represented it would, and did not intend to furnish the reports it represented it would."

Under Rule 34 of the Federal Rules of Civil Procedure, the defendant filed a motion for the production of certain documents supported by an affidavit of counsel. The district court granted that motion in part. On rehearing, the broad production order was somewhat limited. The final production order confined the dates of the documents to the period from January 1, 1962, to February 19, 1969, and also provided "Defendant shall not disclose names of plaintiff's customers or details of plaintiff's relationship with them without further order of this Court." Plaintiff refused to comply with any portion of the order, and the district court struck the complaint. This appeal followed.

On appeal, plaintiff contends that it should not have to produce the following nine categories of documents:

"2. Writings showing, as to each person employed by National Utility as a rate analyst, posting clerk, checking clerk, researcher or set-up man, since January 1, 1962:

(a) The name of the employee;

(b) The date of his or her employment;

(c) The capacity in which he or she was first employed;

(d) The changes in that capacity and the dates thereof.

"3. Writings showing as to each person employed by National Utility as a salesman:

(a) The name of the employee;

(b) The date of his or her employment;

(c) The capacity in which he or she was first employed;

(d) The changes in that capacity and the dates thereof.

"4. All writings relating to gas utility rates in the states of Illinois, Indiana, Michigan, Wisconsin, Iowa, Missouri and Kentucky, which serve as sourse materials to National Utility.

"12. All writings reflecting technical investigations and analyses by National Utility of the various factors in the rates in any of its customers.

"13. All analysis sheets prepared by National Utility.

"14. All writings in which National Utility recommended to any customer any course of action that would or might result in savings to the customer.

"18. All writings showing the names and last known addresses of all persons employed by National Utility as secretaries.

"19. All writings relating to customers of National Utility who are or who have also been customers of Northern Illinois Gas.

"20. Writings showing the names and last known addresses of officers of National Utility who are no longer employed by National Utility."

Plaintiff first objects that the attorney's affidavit in support of defendant's production motion did not state facts within the personal knowledge of the affiant and therefore requisite "good cause" for discovery under Rule 34 could not be established. Whether advanced as a general proposition of law or a statement about the adequacy of the showing in this case, the contention is without merit.

No set requirements or formalities are imposed for the establishment of good cause. 4 Moore's Federal Practice ¶ 34.08 (1969). It is clear that a production motion may be verified in any reasonable manner demonstrating that the material sought is relevant to the issues and that there is some good reason for enlisting the power of the court in uncovering that information. See Schlagenhauf v. Holder, 379 U.S. 104, 118-119, 85 S.Ct. 234, 13 L.Ed.2d 152. The judicially imposed requirement that "special circumstances" be demonstrated no more specifies the method by which those exigencies may be shown than it constricts the breadth of the "special circumstances" justifying discovery. Cf. Hanley v. James McHugh Construction Co., 419 F.2d 955 (7th Cir. 1969). Good cause for discovery may be apparent from the pleadings alone (Schlagenhauf v. Holder, supra, 379 U.S. at p. 120, 85 S.Ct. 234) or from the motion itself without any accompanying affidavit where the records and pleadings warrant. E. g., Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir. 1963); Rekeweg v. Federal Mutual Ins. Co., 27 F.R.D. 431 (N.D.Ind.1961).

In the present case, the motion for discovery was accompanied by an affidavit of defendant's attorney which set forth the plaintiff's exclusive possession of the documents and information sought and defendant's inability to obtain the information informally or through independent means. In addition, the affidavit explained the purposes to which the plaintiff's documents and information related, the responses and disclosures anticipated, and their materiality and relevance to the defenses contained in the Answer. Plaintiff contends, however, that the entire affidavit should be discounted and discovery denied because of asserted contradictions between the facts averred and pretrial testimony of several of defendant's officials and the salesman who negotiated the contract between the two litigants. Assuming, arguendo, that such factual contradictions might undermine an affidavit to such an extent as to render a court's finding of good cause or relevancy an abuse of discretion, nevertheless, those portions of the record cited to this Court fail to disclose any salient discrepancies or contradictions which would support such a result. The depositions neither contradict the affidavit nor undermine its showing of good cause.

We turn now to consider the adequacy of the showing of good cause as it applies to the specific set of...