Southern Methodist University Ass'n of Women Law Students v. Wynne & Jaffe

• Decision Date: 30 July 1979
• Docket Number: Nos. 77-2346,77-2347,s. 77-2346
• Citation: 599 F.2d 707
• Parties: 20 Fair Empl.Prac.Cas. 457, 20 Empl. Prac. Dec. P 30,136 SOUTHERN METHODIST UNIVERSITY ASSOCIATION OF WOMEN LAW STUDENTS et al., Plaintiffs-Appellants, Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. WYNNE & JAFFE, Defendants-Appellees. SOUTHERN METHODIST UNIVERSITY ASSOCIATION OF WOMEN LAW STUDENTS et al., Plaintiffs-Appellants, Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. THOMPSON, KNIGHT, SIMMONS & BULLION, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 707

599 F.2d 707

20 Fair Empl.Prac.Cas. 457,

20 Empl. Prac. Dec. P 30,136

SOUTHERN METHODIST UNIVERSITY ASSOCIATION OF WOMEN LAW

STUDENTS et al., Plaintiffs-Appellants, Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. WYNNE & JAFFE, Defendants-Appellees.

SOUTHERN METHODIST UNIVERSITY ASSOCIATION OF WOMEN LAW

STUDENTS et al., Plaintiffs-Appellants, Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. THOMPSON, KNIGHT, SIMMONS & BULLION, Defendants-Appellees.

Nos. 77-2346, 77-2347.

United States Court of Appeals, Fifth Circuit.

July 30, 1979.

Neil H. Cogan, Dallas, Tex., for plaintiffs-appellants in both cases.

Robert A. Gwinn, Dallas, Tex., for defendants-appellees in 77-2346.

Beatrice Rosenberg, Gerald D. Letwin, Attys., William H. Ng, EEOC, Appellate Div., Washington, D. C., for other interested parties in both cases.

Charles Porter Storey, Francis W. Thayer, Dallas, Tex., for defendants-appellees in 77-2347.

Appeals from the United States District Court for the Northern District of Texas.

Before AINSWORTH and VANCE, Circuit Judges, and BOOTLE, ^* District Judge.

AINSWORTH, Circuit Judge:

In these companion Title VII ¹ sex discrimination suits, the Southern Methodist University (SMU) Association of Women Law Students (Association) and Lawyers A, B, C and D (A-D), four female lawyers seeking to proceed anonymously, allege that defendants, two Dallas law firms, discriminated against women in hiring summer law clerks and associates and request injunctive relief. Plaintiffs appeal from various pretrial orders of the district court requiring the Association to reveal by proper pleadings the true identities of lawyers A-D and to answer certain defense interrogatories. These interrogatories, among other things, ask the identities of the officers and members of the Association's governing body and request information respecting the Association's relationship to SMU. Defendants contend that the trial court's orders are not appealable, but we conclude that the orders are appealable under the collateral order doctrine and, with the single modification described below, affirm.

I. Procedural Background

On May 5, 1976, the Association filed a complaint, on behalf of itself, its women members and all women situated similarly to its women members, against Wynne & Jaffe, a Dallas law firm. ² The Association charged that Wynne & Jaffe violated Title VII by discriminating against women in hiring summer law clerks. The law firm answered the complaint on May 26, denying that its summer hiring practices violated the Act. Plaintiff and defendant served interrogatories on each other in July and August. On August 9, the Association filed objections to Wynne & Jaffe's interrogatories and also moved for a protective order. Plaintiff averred that many of defendant law firm's interrogatories sought information privileged from disclosure under the Constitution and Title VII and contended that disclosure would cause "the plaintiff's officers . . . the women members of plaintiff and the women represented by plaintiff embarrassment, annoyance and economic loss"; ³ the Association also moved, "(i)f the foregoing objections are not sustained in full," that any information revealed pursuant to Wynne & Jaffe's interrogatories "should be available only in confidence to defendant's attorney."

The Equal Employment Opportunity Commission (EEOC) filed a motion for leave to intervene as a party-plaintiff on August 23. Judge Higginbotham issued an order respecting Wynne & Jaffe's interrogatories on October 12, sustaining the Association's objection to four of the interrogatories and requiring it to answer the remaining twenty-nine. ⁴ The court also ruled that defense counsel "shall not communicate Plaintiff's answers . . . to any person other" than two named partners of Wynne & Jaffe and ordered these lawyers not to "communicate such answers of Plaintiff to any other person, including without limitation, members, associates and employees of the Defendant law firm, except upon further application to and order of this Court."

On October 26, the Association brought a separate suit against Thompson, Knight, Simmons & Bullion, another Dallas law firm, alleging similar Title VII violations in the hiring of summer law clerks and associates. ⁵ Thompson, Knight answered the complaint on December 3, denying the charges, and on December 15 the EEOC filed a motion for leave to intervene as a party plaintiff. On February 23, 1977, while the EEOC's motions to intervene in the two actions were still pending, the cases were transferred from Judge Higginbotham to Judge Woodward. The Association moved for permission to file amended complaints in both actions on March 15, seeking to add as named plaintiffs the following alleged victims of each firm's purported discrimination: Lawyer A and Lawyer B in the Wynne & Jaffe suit and Lawyers A-D in the action against Thompson, Knight. On April 13, these anonymous persons and the Association moved for protective orders in each case, asking the court to limit to defendants' respective counsel pretrial disclosure of "the identities, or information which reasonably discloses the identities" of the anonymous plaintiffs and the members of the Association. ⁶

Judge Woodward issued an order on May 10 granting the EEOC's motions to intervene in the two actions and the Association's request for leave to amend its complaints by adding A-D as parties plaintiff, "except that the identities of Lawyers A, B, C and D must be disclosed for these complaints and for all further purposes. (Only Lawyers A and B need be named in Wynne & Jaffe)." The trial court reasoned that "(t)he demand of the Association to prevent disclosure of Lawyers A-D is not mandated by the record. This is not a case involving racial strife or labor informants. Present there, but not here, were dangers of physical harm to the protected parties. Here the harm is at the most economic and at the least social. Further, the mechanics of non-disclosure would only further complicate an already complicated set of cases." ⁷

On May 19, plaintiffs filed a motion requesting the district court to amend its May 10 order "so as to permit an interlocutory appeal therefrom pursuant to 28 U.S.C. § 1292(b)"; the trial judge denied that motion on May 25. Meanwhile, Wynne & Jaffe served plaintiffs with a second set of interrogatories on May 24. Plaintiffs moved for a "protective and restraining order" to strike certain interrogatories on May 27, objecting to defendant's queries with respect to the Association's current membership list and the identities of the women whom plaintiffs alleged were reluctant to join or "labor for the Association in the public eye" and fearful "that, if they are associated with the Association, they will be singled out for discrimination by Defendants and other law firms." In an order entered June 8, Judge Woodward declared that he would grant a defense motion to produce the Association's current membership list "if same is not voluntarily produced by the plaintiffs" and instructed plaintiffs to reply to the other contested interrogatories.

II. Appealability of the District Court's Orders

Plaintiffs urge us to reverse the trial court's orders compelling disclosure of the identities of A-D and information regarding the Association's membership. They assert that the four anonymous lawyers and the organization's members will "suffer economically and socially should their participation in these actions become generally known." Lawyers A, B and C, in sealed affidavits, express a belief that they would "be eased out" or "assigned less desirable matters" by their current employers and one of the women suggests "that her firm would likely lose business should her identity become known." Plaintiffs further argue that if the identities of A-D and the Association's members are revealed and these persons "find it difficult to practice law," other professionals subjected to illegal discrimination will become reluctant to bring Title VII actions and hesitant to band together "in law and other professional schools to advocate their rights under the civil rights statutes." Plaintiffs' brief on appeal, pp. 25-27.

However, before considering the merits of plaintiffs' contentions, we must determine whether the district court's pretrial disclosure orders are appealable, for as Mr. Justice Jackson observed in Cohen v. Beneficial Industrial Loan Corporation, "(a)ppeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). 28 U.S.C. § 1291 empowers the courts of appeal to hear "appeals from all Final decisions of the district courts." (emphasis added) Generally, this means "a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), Quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Section 1291 "disallow(s) appeal from any decision which is tentative, informal or incomplete" and permits no appeal of decisions "where they are but steps towards final judgment in which they will merge." Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225. But courts have long given this statute "a practical rather than a technical construction," Id.; See Gillespie v. United States Steel Corporation, 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964); In re Nissan Motor Corporation Antitrust Litigation, 5 Cir., 1977, 552 F.2d 1088, 1095; Diaz v. Southern Drilling Corporation, 5 Cir., 1970, 427 F.2d 1118, while striving to balance "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice...