Wm. T. Thompson Co. v. General Nutrition Corp., Inc., No. 81-1930

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ADAMS, GIBBONS and GARTH; GIBBONS
Citation671 F.2d 100
Parties1982-1 Trade Cases 64,564, 9 Fed. R. Evid. Serv. 1505 WM. T. THOMPSON CO. v. GENERAL NUTRITION CORP., INC., et al. General Nutrition Corporation and General Nutrition Center, Inc., Appellants.
Decision Date08 February 1982
Docket NumberNo. 81-1930

Page 100

671 F.2d 100
1982-1 Trade Cases 64,564, 9 Fed. R. Evid. Serv. 1505
WM. T. THOMPSON CO.
v.
GENERAL NUTRITION CORP., INC., et al. General Nutrition
Corporation and General Nutrition Center, Inc., Appellants.
No. 81-1930.
United States Court of Appeals,
Third Circuit.
Argued Dec. 14, 1981.
Decided Feb. 8, 1982.

Page 101

Michael D. Fox, John P. Edgar (argued), Gary L. Goldberg, Vasilis C. Katsafanas, Berkman, Ruslander, Pohl, Lieber & Engel, Pittsburgh, Pa., for appellants, General Nutrition Corp. and General Nutrition Center, Inc.

Les J. Weinstein (argued), Aaron M. Peck, Robert G. Badal, C. Steven McMurry, Scott P. Cooper, McKenna, Conner & Cuneo, Los Angeles, Cal., Roger C. Wiegand, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellee Wm. T. Thompson Co.

Before ADAMS, GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

General Nutrition Corporation (General) appeals from an order of the District Court enforcing a subpoena for a deposition of a third party. Wm. T. Thompson Co. (Thompson), the appellee, moves to dismiss General's appeal. We deny the motion to dismiss the appeal, and we affirm the District Court's order.

I

Thompson and General are parties to two civil actions, consolidated for purposes of discovery, pending in the United States District Court for the Central District of California. 1 On November 21, 1980 Thompson, having served notice provided in Fed.R.Civ.P. 30(b) to take a deposition of Touche Ross and Company in Pittsburgh, Pennsylvania, obtained from the Clerk of the District Court of the Western District of Pennsylvania a subpoena duces tecum directing Touche Ross to appear and produce documents on January 21, 1981. Within the time permitted by Fed.R.Civ.P. 45(d)(1) Touche Ross objected in writing to the subpoena, whereupon Thompson, as that rule provides, moved in the Western District of Pennsylvania for a court order enforcing it. 2

In response to the motion both Touche Ross and General asserted that the materials for which discovery was sought fell

Page 102

within the protection of the Pennsylvania's statutory accountant-client privilege. 3 The district court rejected this contention and by order of February 18, 1981 directed Touche Ross to comply. A Touche Ross representative appeared at the place designated for the deposition on March 12, 1981, but at General's direction refused to answer any substantive questions or produce any documents. Thompson then renewed its motion to compel discovery, while General filed a cross-motion for a protective order enforcing the Pennsylvania statutory privilege. On May 4, 1981 the district court granted Thompson's motion to enforce, and denied General's motion for a protective order. From the May 4, 1981 order, General on May 15, 1981 filed a notice of appeal. 4 Subsequently, Thompson moved to dismiss the appeal for lack of jurisdiction.
II

We turn first to Thompson's motion to dismiss the appeal. In ruling on that motion, it is important to note that this case does not involve a discovery order directed to a party, and thus does not concern the sanctions for failure to make or cooperate in discovery provided for in Fed.R.Civ.P. 37. Rather, it involves a subpoena to a third party witness, for which the only enforcement mechanism is that provided in Rule 45(d). Moreover, because the deposition in this instance is noticed for a district other than that in which the action is pending, enforcement takes place entirely separate from the underlying action, since Rule 45(d) expressly so provides. Thus there is no way in which any record made in the enforcement proceeding can be reviewed either by the District Court for the Central District of California where the action is pending, or by the Court of Appeals for the Ninth Circuit.

A Rule 45 proceeding to enforce a subpoena against a third party witness in another district might well, therefore, fall within that category of cases such as Ellis v. Interstate Commerce Commission, 237 U.S. 434, 35 S.Ct. 645, 59 L.Ed. 1036 (1915), Harriman v. Interstate Commerce Commission, 211 U.S. 407, 29 S.Ct. 115, 53 L.Ed. 253 (1908) and Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894), involving judicial enforcement of agency subpoenas. In those situations, the order directing a witness to answer is considered final and reviewable without the necessity for the witness standing in contempt. As the court explained in Cobbledick v. United States, 309 U.S. 323, 330, 60 S.Ct. 540, 543, 84 L.Ed. 783 (1940), a proceeding to enforce a subpoena in a tribunal other than where the main action is pending is likened to "an independent suit in equity in which appeal will lie from an injunction without the necessity of waiting for disobedience." See Clarke v. Federal Trade Commission, 128 F.2d 542, 543 (9th Cir. 1942). We need not decide that question in this case, however, for under the governing case law in the Supreme Court and here, even if the Rule 45 enforcement proceeding is not considered an action separate from the main case, it results in an order from which General may take an appeal to protect its Pennsylvania law privilege.

Page 103

In In re Grand Jury (C. Schmidt & Sons ), 619 F.2d 1022 (3d Cir. 1980), a federal grand jury issued subpoenas to six employees of a corporation. The employee witness and the corporation as intervenor moved to quash the subpoenas, and the motions of both were denied. On appeal this court, relying on Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), held that...

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111 practice notes
  • International Horizons, Inc., Matter of, No. 82-8024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 21, 1982
    ...from order compelling his attorney to disclose allegedly confidential information). 13 Accord, W. T. Thompson v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982) (party claiming accountant-client privilege may appeal from order compelling its accountant to disclose allegedly confid......
  • Hurley v. Atlantic City Police Dept., No. 93-260
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 11, 1999
    ...rules to both. See Purgess v. Sharrock, 33 F.3d 134, 139-40 (2d Cir.1994); cf. Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir.1982) (holding that the federal rule favoring admissibility of relevant evidence applies to state law claims in federal cases to whi......
  • Subpoenas to Local 478, Intern. Union of Operating Engineers and Ben. Funds, In re, No. 599
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 19, 1983
    ...Perlman v. United States, 247 U.S. 7, 12-13, 38 S.Ct. 417, 419-420, 62 L.Ed. 950 (1918); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir.1982); United States v. Raineri, 670 F.2d 702, 712 (7th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982)......
  • Quinn v. Kent General Hosp., Inc., Civ. A. No. 84-509 CMW.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • August 16, 1985
    ...v. Mohammad, 586 F.2d 530 (5th Cir.1978); Robinson v. Magovern, 83 F.R.D. 79 (W.D.Pa.1979). Cf. Thompson v. General Nutrition Corp., 671 F.2d 100 (3d Cir.1982) (motion for protective order based on Pennsylvania statutory accountant-client privilege The discovery sought by Dr. Quinn is indis......
  • Request a trial to view additional results
111 cases
  • International Horizons, Inc., Matter of, No. 82-8024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 21, 1982
    ...from order compelling his attorney to disclose allegedly confidential information). 13 Accord, W. T. Thompson v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982) (party claiming accountant-client privilege may appeal from order compelling its accountant to disclose allegedly confid......
  • Hurley v. Atlantic City Police Dept., No. 93-260
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 11, 1999
    ...rules to both. See Purgess v. Sharrock, 33 F.3d 134, 139-40 (2d Cir.1994); cf. Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir.1982) (holding that the federal rule favoring admissibility of relevant evidence applies to state law claims in federal cases to whi......
  • Subpoenas to Local 478, Intern. Union of Operating Engineers and Ben. Funds, In re, No. 599
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 19, 1983
    ...Perlman v. United States, 247 U.S. 7, 12-13, 38 S.Ct. 417, 419-420, 62 L.Ed. 950 (1918); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir.1982); United States v. Raineri, 670 F.2d 702, 712 (7th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982)......
  • Quinn v. Kent General Hosp., Inc., Civ. A. No. 84-509 CMW.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • August 16, 1985
    ...v. Mohammad, 586 F.2d 530 (5th Cir.1978); Robinson v. Magovern, 83 F.R.D. 79 (W.D.Pa.1979). Cf. Thompson v. General Nutrition Corp., 671 F.2d 100 (3d Cir.1982) (motion for protective order based on Pennsylvania statutory accountant-client privilege The discovery sought by Dr. Quinn is indis......
  • Request a trial to view additional results

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