Philadelphia Electric Co. v. Anaconda American Brass Co.

• Decision Date: 27 October 1967
• Docket Number: Civ. A. No. 41734 and Related Actions.
• Citation: 275 F. Supp. 146
• Parties: PHILADELPHIA ELECTRIC COMPANY v. ANACONDA AMERICAN BRASS COMPANY et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

275 F. Supp. 146

PHILADELPHIA ELECTRIC COMPANY v. ANACONDA AMERICAN BRASS COMPANY et al.

Civ. A. No. 41734 and Related Actions.

United States District Court E. D. Pennsylvania.

October 27, 1967.

Harold E. Kohn, Dilworth, Paxson, Kalish, Kohn & Levy, David Berger, Cohen, Shapiro, Berger, Polisher & Cohen, Philadelphia, Pa., for plaintiffs.

Frank J. Kelley, Atty. Gen., Maxine Boord Virtue, Asst. Atty. Gen., of Michigan, Lansing, Mich., for intervenor plaintiff.

Joseph W. Swain, Jr., Montgomery, McCracken, Walker & Rhoads, David F. Maxwell, Obermayer, Rebmann, & Maxwell & Hippel, Robert W. Sayre, Saul, Ewing, Remick & Saul, Lewis H. Van Dusen, Jr., Drinker, Biddle & Reath, Samuel B. Fortenbaugh, Clark, Ladner, Fortenbaugh & Young, Arthur H. Kahn, Schnader, Harrison, Segal & Lewis, Henry T. Reath, Duane, Morris & Heckscher, Leonard J. Cook, Shapiro, Stalberg, Cook, Murphy & Kalodner, S. Gordon Elkins, Stradley, Ronon, Stevens & Young, John G. Harkins, Jr., Pepper, Hamilton & Scheetz, H. Francis DeLone, Oliver C. Biddle, Ballard, Spahr, Andrews & Ingersoll, Michael H. Malin, White & Williams, Philadelphia, Pa., Gaston, Snow, Motley & Holt, Boston, Mass., for defendants.

MEMORANDUM OPINION

FULLAM, District Judge.

In this complex and protracted antitrust litigation, various disputes have arisen as to the scope of permissible discovery. On August 2, 1967, I entered an order disposing of various motions then pending on the subject. Reconsideration and reargument was sought by various parties, and on October 12, 1967, I entered an order amending and clarifying the order of August 2, 1967. In subsequent conferences with counsel, the court has been made aware of the desire of some of the parties to attempt an interim appeal from these orders, and the desirability of further clarification, and of an expression of the reasons for the actions taken, has become manifest.

It should be mentioned that much of the difficulty and alleged confusion stems from the fact that counsel and the court have not been dealing in terms of specific, identified documents, but rather in terms of general categories of documents, described on this record, for the most part, by counsel who have never seen them.

By way of general background, it should here be noted that these are civil actions for treble damages against a group of defendants, all but one of whom have heretofore entered pleas of nolo contendere in the United States District Court for the District of Connecticut on charges of conspiring to violate the antitrust laws of the United States. In connection with the imposition of sentence in the criminal cases, counsel for the various defendants prepared elaborate memoranda containing, apparently, a considerable amount of information as to the extent of the participation of each defendant in the alleged conspiracy, and also containing information bearing on the relationship between the prices allegedly fixed, and production costs, market allocations, etc. These memoranda were furnished to government counsel in advance of the sentencing, and were made available to the sentencing judge. After sentence was imposed, the sentencing judge ordered the court records, including the pre-sentence memoranda, sealed.

The grand jury which returned the indictments in the criminal cases had heard the testimony of various officers and employees of various defendants. Promptly after such grand jury appearances, these witnesses were interviewed at length by defense counsel, and memoranda were made summarizing the testimony given to the grand jury.

In the course of the criminal litigation, various other witnesses were interviewed by counsel, and memoranda of their statements were recorded; and counsel from time to time prepared summaries and analyses of the witnesses' statements and other aspects of the investigation. These analyses, apparently, include information obtained from documents submitted to the grand jury, employee interviews, and the "grand jury summaries."

In considering the discoverability of these various classes of documents, it is important to note that these defendants, over the strenuous objections of the plaintiffs, persuaded the court, at the very outset of the litigation to adopt the discovery program which had been worked out by agreement in similar litigation against these defendants in the United States District Court for the Southern District of New York. Counsel for the plaintiffs in the present case had not participated in the negotiations leading to the New York order, and objected to its adoption in this litigation, but defense counsel's arguments, based principally upon defense convenience, carried the day. Moreover, although disputes as to the interpretation of the New York discovery order seemingly arose virtually contemporaneously with the entry of that order in the present litigation, there has been no request to modify or clarify that order.

It has therefore been necessary to consider not only the various contentions of the parties as to the attorney-client privilege, the work-product privilege, grand jury secrecy, the sealing order in the Connecticut court, and the various degrees of adequate cause or particularized need which must be shown to overcome these several privileges or exemptions, but also the extent to which these factors have been rendered inapplicable to the present case by reason of the New York discovery order which was adopted at defendants' insistence, as pretrial order No. 2, in the present litigation.

I. PRE-SENTENCE MEMORANDA

The pre-sentence memoranda filed are properly subject to production on motion. United States Industries, Inc. v. United States District Court, etc., 345 F.2d 18 (9th Cir.) cert. den. 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965). However, such memoranda may be protected by the attorney-client privilege, cf. In re Scranton Corporation, 37 F.R.D. 465 (M.D.Pa.1965), or by the work-product privilege, cf. Connecticut Mutual Life Ins. Co. v. Shields, 16 F.R.D. 5 (S.D. N.Y.1954), Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). But disclosure to third parties destroys the privilege. D'Ippolito v. Cities Service Co., 39 F.R.D. 610 (S.D.N.Y.1965). I am satisfied that, quite apart from the effect of pretrial order No. 2, these pre-sentence memoranda are subject to production because they were disclosed...