United States v. United Shoe Machinery Corporation, Civil Action No. 7198.

• Decision Date: 03 March 1948
• Docket Number: Civil Action No. 7198.
• Citation: 76 F. Supp. 315
• Parties: UNITED STATES v. UNITED SHOE MACHINERY CORPORATION.
• Court: U.S. District Court — District of Massachusetts

76 F. Supp. 315

UNITED STATES v. UNITED SHOE MACHINERY CORPORATION.

Civil Action No. 7198.

District Court, D. Massachusetts.

March 3, 1948.

Grant W. Kelleher, Sp. Asst. to Atty. Gen., C. Worth Rowley, Alfred Karsted, Edward M. Feeney, and Roy N. Freed, Sp. Attys., all of Boston, Mass., Tom C. Clark, Atty. Gen., John F. Sonnett, Asst. Atty. Gen., Holmes Balbridge, Sp. Asst. to Atty. Gen., and William T. McCarthy, U. S. Atty., of Boston, Mass., for plaintiff.

Walter Powers, John L. Hall, and Claude R. Branch, all of Boston, Mass., for defendant.

WYZANSKI, District Judge.

There are before me defendant's motion for a more definite statement and for a bill of particulars and plaintiff's motion, as amended, for production of documents.

I deny in toto defendant's motion for a more definite statement and for a bill of particulars. My consistent practice in civil cases has been narrowly to restrict the granting of motions for a more definite statement and for bills of particulars. Like the majority of courts whose opinions are cited in the report prepared by the Advisory Committee on Rules of Civil Procedure, I have viewed Rule 12(e), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, strictly. Under the standards which I have heretofore consistently applied, I am satisfied that plaintiff's bill states with sufficient particularity the conduct which defendant is alleged to have pursued in violation of law.

With respect to plaintiff's motion, as amended for production of documents under Rule 34, I start with the concession made by both parties at the bar: (1) It is a matter of judicial discretion whether a court grants a motion under Rule 34 prior to defendant's answer and (2) there is a conflict in the lower Federal courts as to whether Rule 34 and particularly the word "designated" as used in that rule is satisfied when the demanding party indicates merely the categories of documents which he desires to have furnished by his opponent.

So far as concerns my discretion to allow such a motion at the present time, I conclude that the interests of justice will be furthered by allowing the motion forthwith. Expedition is of the essence of justice in this case. The reasons were sufficiently set forth in the Attorney-General's original certificate and require no elaboration.

So far as concerns the conflict in the interpretation of Rule 34, I am mindful that the early view in the Southern District of New York and the view prevailing even now in many districts was perhaps best phrased by Judge Woolsey in United States v. American Optical Co., S.D.N.Y., 2 F.R. D. 534. In that civil action by the government under the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note, he denied the government's motion for production of documents because it did not point with sufficient precision to each specific document sought. In his opinion the touchstone in a motion under Rule 34 was whether it was possible for "the defendant to go to his files and, without difficulty, to pick the document or other item requested out and to turn to the plaintiff saying `Here it is.'" Such definiteness of description, however, no longer appears to prevail in the Southern District of New York where Woolsey J. once sat with such distinction. The latest authoritative decision is by Judge Rifkind in United States v. United States Alkali Export Ass'n, S.D.N.Y., 7 F.R.D. 256. In that anti-trust proceeding Judge Rifkind upheld a motion for discovery of the category type similar to the pattern followed by plaintiff in the case at bar. I am persuaded that in the instant litigation the sounder course is to follow the broader rule announced by Judge Rifkind and built on the analogies of Brown v. United States, 276 U.S. 134, 143, 48 S.Ct. 288, 72 L.Ed. 500, and Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 543, 544, 28 S.Ct. 178, 52 L.Ed. 327, 12 Ann.Cas. 658. Compare also the breadth of administrative subpoenas sustained in Oklahoma Press Pub. v. Walling, 327 U.S. 186, 210, footnote 46, 66 S.Ct. 494, 166 A.L.R. 531, 90 L.Ed. 614. The categories of documents here requested seem to me to be sufficiently clearly defined. All of them are on their face material to the issues raised by the complaint. There is no insuperable difficulty in identifying them (as distinguished from the expense and labor of collecting them). Their prompt assembly and production would expedite this case. And an attempt to state more specifically each document requested would...