United States v. United Shoe Machinery Co. of New Jersey
| Decision Date | 28 August 1912 |
| Docket Number | 301 (911). |
| Citation | 198 F. 870 |
| Parties | UNITED STATES v. UNITED SHOE MACHINERY CO. OF NEW JERSEY et al. |
| Court | U.S. District Court — District of Massachusetts |
Asa P French, U.S. Atty., Edwin H. Abbot, Jr., Sp. Asst. U.S Atty., and W. S. Gregg, Sp. Asst. Atty. Gen.
Charles F. Choate, Jr., Walter Bates Farr, and H. G. Donham, all of Boston, Mass., for defendants.
The United States, having given notice that it desires evidence to be taken orally under the sixty-seventh rule in equity (29 S.Ct. xxxiii), contends that the public and the press should be admitted to the proceedings wherein the depositions of witnesses are to be taken before the examiner.
It is urged that the public and press should be afforded an opportunity to attend and to hear whatever may be said upon the examination before it has been reduced to writing and signed by the witness, and before the deposition is presented to the court. This contention is not supported by the citation of any authority, and is so contrary to the usual practice both at law and in equity that it might be summarily disposed of save for the statement of the United States attorney that in cases under the Sherman Act such a course has been followed. The cases cited by the United States which uphold the undisputed principle of publicity in trials and in judicial proceedings do not in the slightest degree support the contention of the United States, and afford no assistance upon the question before us. This question is whether the public and the press should be admitted to the taking of depositions for use at a trial not then begun, but which is to take place in the future.
The question is easily solved upon a consideration of the essential difference between a trial or a judicial proceeding held by an officer with judicial authority, and the merely preliminary step of taking depositions.
Equity rule 67 provides that the examination shall take place in the presence of the parties or their agents, by their counsel or solicitors; that the depositions taken shall be reduced to writing by the examiner; that the testimony of each witness shall be read over to him and signed by him in the presence of the examiner and such of the parties or counsel as may attend, etc. The examiner may note objections, but he 'shall not have the power to decide upon the competency materiality or relevancy of the questions. ' The original depositions, authenticated by the signature of the examiner, must be transmitted by him to the clerk of the court, to be there filed of record, in the mode prescribed by Revised Statutes, Sec. 865 (U.S. Comp. St. 1901, p. 663).
Rule 69 (29 S.Ct. xxxiv) provides that upon the return of the commissions and depositions into the clerk's office publication may be ordered by any judge of the court upon due notice to the parties, and further provides for publication by consent in writing of the parties.
The nature of this proceeding is well described in Wigmore on Evidence, Sec. 1376 (2). 'This process of securing in advance the evidential material for a trial is a part of the preliminary procedure of courts,' etc.
It is also described by Wigmore in section 1331 as Mr. Wigmore refers also to the chancery practice, saying:
'In this practice all testimony was taken in writing, and in the theory the testimony or deposition was the writing and nothing else.'
The brief of the United States attorney asserts:
'The right of the public is to hear testimony, and that is not accorded when it is given merely the privilege to read it.'
It is also asserted:
'There is a right of the public to hear what is being said in this case while it is being said.'
It is quite apparent from what we have said that such a supposed right has never existed in the practice of the chancery courts, nor has such a right in respect to the taking of depositions ever existed at law. Both common-law judges and juries are compelled to receive testimony in the form of written depositions, and upon such written testimony of witnesses whom they have never seen nor heard may make decisions as to the rights of parties.
The public has a right to such form of testimony as the law provides shall be received at trials at law or at hearings in equity or upon other judicial proceedings. If judges and juries may not object that they have not seen and heard the witness while he was testifying, the press and public may not object.
Furthermore, neither at law nor in equity does a deposition become evidence in a case until it is offered by one of the parties; until there is an opportunity for a judicial hearing as to its competency. A party in a cause has a right to the protection of the court in a judicial hearing. In the proceedings before an examiner such right is not afforded him. No question of right is submitted to the examiner, and under the provision of equity rule 67 and under the doctrine of Blease v. Garlington, 92 U.S. 1, 7, 23 L.Ed. 521, the examiner must take down all the examination in writing. The party has the right to have his exceptions noted and to file further exceptions when the deposition is filed in court.
'The testimony is taken to be submitted to the court where the suit is pending, and all questions upon the evidence, its materiality and sufficiency, are to be determined by it, and after it by an appellate court. ' Nelson v. United States, 201 U.S. 92, 26 Sup.Ct. 358, 50 L.Ed. 673.
The only opportunity for redress which the party has against improper or irrelevant testimony follows the filing of the deposition. If all is to be made public before it is reduced to final from in writing and before there is an opportunity for a hearing upon the propriety and competency of the testimony, all effective protection against scandal, impertinence, and irrelevancy is practically gone.
When justice is being administered by a judicial officer, the public is entitled to attend, save under exceptional conditions, with which we need not deal.
In Cowley v. Pulsifer et al., 137 Mass. 392, 50 Am.Rep. 318, Mr. Justice Holmes considered the question of the policy of publicity, and marks the distinction between what takes place in open court and the filing in the clerk's office of a petition containing a written preliminary charge.
Due process of law requires that the parties have an opportunity to be heard. For the court to enforce a rule that the public and the press shall have an opportunity to listen before the parties to the case have an opportunity to be heard would be a plain violation of elementary rules of fair play. The proceeding before the examiner lacks the essential element,-- an opportunity to be heard by a judicial officer and to submit questions of right to a judicial officer.
Furthermore, another essential difference is that upon a trial or judicial proceeding the rights of the parties are submitted for an adjudication. A party in equity ordinarily may dismiss his bill at any time before final hearing. Houghton v. Whitin Machine Co. (C.C.) 160 F. 227; Morton Trust Co. v. Keith (C.C.) 150 F. 606. Under the view of the United States a bill may be filed, the testimony of hostile witnesses may be presented to an examiner, the public and the press may attend, and the complainant may then dismiss the bill, leaving the defendant no opportunity to reply or to procure an adjudication which will offset the injurious statements of witnesses. It is manifest from the nature of depositions, because they are not yet legal evidence and because the parties against whom they are taken have had no opportunity for a hearing, that the proper practice is that which has been uniformly observed. Equity rule 69 expressly provides for publication either upon the order of a judge or by consent of parties, after the return of the depositions by the examiner.
In Patterson v. Colorado, 205 U.S. 454, 462, 27 Sup.Ct. 556, 558, 51 L.Ed. 879, 10 Ann.Cas. 689, it was said:
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