Paramount Film Distributing Corp. v. Civic Center Theatre, 7565

Decision Date18 June 1964
Docket NumberNo. 7565,7566,7573,7585.,7565
Citation333 F.2d 358
PartiesPARAMOUNT FILM DISTRIBUTING CORPORATION, Warner Bros. Pictures Distributing Corporation, Twentieth Century-Fox Film Company, Columbia Pictures Corporation, Universal Film Exchanges, Inc., and Metro-Goldwyn-Mayer, Inc., Appellants, v. CIVIC CENTER THEATRE, INC., 10th Avenue Drive-In, Inc., Silver Bow Motor-Vu Drive-In, Inc., Bridgeway Drive-In Theatre, Bow Theatre, Inc., Montana Corporations, Appellees. BUENA VISTA DISTRIBUTION CO., Inc., Petitioner, v. The Honorable Willis W. RITTER, United States District Judge, Respondent. CIVIC CENTER THEATRE, INC., 10th Avenue Drive-In, Inc., Silver Bow Motor-Vu Drive-In, Inc., Bridgeway Drive-In Theatre, Bow Theatre, Inc., Montana Corporations, Appellees, v. PARAMOUNT FILM DISTRIBUTING CORPORATION, Warner Bros. Pictures Distributing Corporation, Twentieth Century-Fox Film Company, Columbia Pictures Corporation, Universal Film Exchanges, Inc., NT&T Amusement Corporation, Fox Intermountain Theatres, Inc., Buena Vista Distribution Co., Inc., and Metro-Goldwyn-Mayer, Inc., Appellants. PARAMOUNT FILM DISTRIBUTING CORPORATION, Warner Bros. Pictures Distributing Corporation, Twentieth Century-Fox Film Company, Columbia Pictures Corporation, Universal Film Exchanges, Inc., and Metro-Goldwyn-Mayer, Inc., Petitioners, v. The Honorable Willis W. RITTER, United States District Judge, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Dennis McCarthy, Leonard J. Lewis, and C. Keith Rooker, Salt Lake City, Utah (Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, with them on the brief), for appellants-petitioners, Paramount Film Distributing Corp., and others in Nos. 7565, 7573 and 7585.

A. Vernon Carnahan, New York City (Peter Gartland, Donovan, Leisure, Newton & Irvine, New York City, and Hardin A. Whitney, Jr., of Moyle & Moyle, Salt Lake City, Utah, with him on the brief), for appellant-petitioner, Buena Vista Distribution Co., Inc., and others, in Nos. 7566 and 7573.

Daniel L. Berman, Salt Lake City, Utah (Joseph Alioto, San Francisco, Cal., Rawlings, Wallace, Roberts & Black, Salt Lake City, Utah, and G. Joseph Bertain, Jr., San Francisco, Cal., of counsel, were with him on the brief), for appellees, Civic Center Theatre, Inc., in Nos. 7565 and 7573, and respondent, The Honorable Willis W. Ritter, United States District Judge, in Nos. 7566 and 7585.

Before PICKETT, LEWIS and SETH, Circuit Judges.

SETH, Circuit Judge.

The petitioners in Nos. 7566 and 7585 have filed applications for leave to file petitions for writs of mandamus or prohibition to be directed to the trial judge to vacate orders he entered directing petitioners to produce documents under Rule 34 of the Federal Rules of Civil Procedure. These petitions arise from a private antitrust action filed in the United States District Court for the District of Utah. The action was commenced by several Montana corporations which allege that they are owners and operators of theaters in Butte and Great Falls, Montana. Plaintiffs seek damages allegedly arising from a conspiracy among the defendants to restrain trade in the interstate distribution of motion pictures. There are nine defendants named in the complaint who are engaged in the business of distributing motion pictures. The petitioners are among these defendants. Each petitioner has its principal office in New York City with branch or regional offices in principal cities throughout the country. After the commencement of the action, the defendant, Buena Vista Distribution Co., Inc., submitted written interrogatories to the plaintiffs and answers were made. Later, the defendants took the depositions of the owners and managers of the plaintiffs and other corporate officers. Following this procedure, the plaintiffs moved under Rule 34 of the Federal Rules of Civil Procedure for the petitioners to produce documents. This motion for the production of documents required petitioners to produce virtually every document dated during the period January 1, 1952, through 1962 relating to the exhibition of motion pictures distributed by the petitioners within the states of Montana, Idaho, Wyoming, Utah, Colorado, Arizona, and New Mexico. The documents were listed in the motion by categories. It was contested by the petitioners, but the court granted the motion to produce in its entirety. The court in ruling indicated that unusually broad discovery would be permitted in cases of this character. However the objections advanced against the motion were considered by the trial court, particularly the inconvenience which would be caused by the use of current records. In this context the statements of the trial court as to his policy on limiting or not limiting discovery must be taken to mean that some limitation will be imposed, and the issues are here considered on this basis. We understand some control will be exercised.

Certain of the petitioners filed motions for reconsideration by the trial court of its order to produce. The motions and supporting affidavits stated that the production of documents in Salt Lake City would require the transportation of several million documents from petitioners' offices in principal cities throughout the west and from New York City; and further that many of the documents were necessary in the conduct of petitioners' current business. These important facts were not before the court when it ruled on the motion to produce. The court refused to entertain the motion to reconsider, and it was entirely proper for it to do so. This being so, the affidavits supporting the motions to reconsider are not properly in the record. The party, Buena Vista Distribution Co., Inc., did make a limited presentation of facts supporting its objection, and these were before the court at the time of its original ruling. The court however decided against Buena Vista on these facts and, without more, we do not disagree.

Petitioners here urge that the order of the trial court does violence to Rules 30 (b) and 34 of the Federal Rules of Civil Procedure, and that it is appropriate for this court to issue a writ of mandamus directed to the trial court to vacate its order of production.

The Buena Vista Distribution Co., Inc., in No. 7566, and Paramount Film Distributing Corporation, Warner Bros. Pictures Distributing Corporation, Twentieth Century-Fox Film Company, Columbia Pictures Corporation, Universal Film Exchanges, Inc., and Metro-Goldwyn-Mayer, Inc., in No. 7585 have also filed appeals from the action of the trial court in granting the plaintiff-appellees' motions for the production of documents. Both procedures will be considered in this opinion.

The questions presented to this court are whether an appeal will lie from the order for the production of documents under Rule 34, and secondly whether mandamus or some similar writ may be directed to the trial court by reason of the entry of the order.

To consider first the petition for writ of mandamus, the All Writs Statute, 28 U.S.C.A. § 1651(a), provides that the courts may issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The exercise of the power so given by the statute is necessarily one of discretion, and is in accordance with the established principles relative to the particular writ which is sought.

The Supreme Court in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, stated that the court of appeals could there entertain an appeal and thus had the power to issue the writ. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185. The La Buy case was a private antitrust action and on appeal the question was whether or not it was proper for the trial court to refer the case to a master for proceedings on the merits. The Supreme Court held that the trial court did not have this authority, and the Court noted that if it found that the rules of practice and procedure had been nullified by the district judge, he would be restrained. The Supreme Court found the exercise of power to be proper and directed that the writ issue. By the referral to the master the trial court had in reality abdicated its judicial function. We do not have such a record before us. A trial court's refusal to limit the scope of discovery or the issues on discovery is however a refusal to act in an important area. A writ of mandamus to a trial court in matters relating to discovery should only issue under exceptional circumstances which amount to a clear abuse of discretion, an abdication of the judicial function, or the usurpation of judicial power. La Buy v. Howes Leather Co., supra; Pet Milk Company v. Ritter, 323 F.2d 586 (10th Cir.).

The problem was also discussed in Hartley Pen Co. v. United States District Court, 287 F.2d 324 (9th Cir.), where the court of appeals issued a writ of mandamus vacating orders of the trial court entered under Rules 33 and 34 of the Rules of Civil Procedure. The matter ordered to be disclosed by the trial court was a secret formula, but the respondent urged that it was relevant to its defense of the case. The appellate court however issued its writ of mandamus vacating the order of disclosure. This cited case is certainly pertinent and persuasive in the case at bar. It represents a protection against a disclosure which would result in an irretrievable loss. Here the petitioners are facing a loss of time and money, and such loss is in one sense irretrievable, but we cannot say that this is comparable to Hartley Pen Co. v. United States District Court, supra.

The petitioners also cite Atlass v. Miner, 265 F.2d 312 (7th Cir.); Madison-Lewis, Inc. v. MacMahon, 299 F.2d 256 (2d Cir.), and Padovani v. Bruchhausen, 293 F.2d 546 (2d Cir.). However, these last two cited cases concerned a violation of particular rules of practice or of variations of established rules of practice, and are not pertinent to this case.

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