holding that “parties in possession of documents forwarded to them by a federal agency have ‘possession, custody, or control’ within the meaning of Rule 34, notwithstanding the fact that the agency by regulation retains ownership and restricts disclosure”
How later courts described this case
- holding that “parties in possession of documents forwarded to them by a federal agency have ‘possession, custody, or control’ within the meaning of Rule 34, notwithstanding the fact that the agency by regulation retains ownership and restricts disclosure”
- holding that Federal Reserve Board’s regulations retaining legal ownership of certain documents were not determinative and compelling bank to disclose such documents in its actual possession
- noting that general statutory authorities relied on by bank regulating agency, including 5 U.S.C. § 301, "simply do not give [the agency] the power to promulgate regulations in direct contravention of the Federal Rules of Civil Procedure,” and concluding "we find no compelling reason to discard the relatively straightforward discovery methods outlined in the Federal Rules of Civil Procedure simply because [the agency] has attempted to mandate a different procedure”
- explaining that "documents are deemed to be within the 'possession, custody or control' . . . if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand"
Written by the judges who cited it.
The opinion
MERRITT, Chief Judge,
concurring.
I concur in full in the court’s opinion, but I would point out an additional consideration. Even if Congress had given the Federal Reserve Board specific statutory authority— which it certainly has not — to withhold documents that contain “confidential supervisory information” under whatever circumstances the Board deems appropriate (including a situation when a federal court had issued a Rule 37 discovery order), it is questionable whether such a statute would be constitutional. The Supreme Court has indicated that delegations of rulemaking authority to Article I agencies may implicate separation of powers concerns. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). As the Supreme Court has noted “we have not hesitated to strike down provisions of a law that ... undermine the authority and independence of one or another coordinate Branch.” Mistretta v. United States, 488 U.S. 361, 382 , 109 S.Ct. 647, 660 , 102 L.Ed.2d 714 (1989). As Justice Brennan has observed, “A Judiciary free from control by the Executive and Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.” Marathon, 458 U.S. at 58 , 102 S.Ct. at 2865 (plurality opinion) (quoting United States v. Will, 449 U.S. 200, 217-18 , 101 S.Ct. 471, 482 , 66 L.Ed.2d 392 (1980)). If Congress were to limit a federal district judge’s authority to order discovery according to the interest of the Federal Reserve, the ability of a federal court to perform its most basic function of deciding “cases and controversies” under Article III of the Constitution would be notably impaired. Courts cannot fairly decide cases if they cannot have access to the information needed for a fair, objective decision. Even when National Security is at stake, federal *473 courts still review documents to determine whether disclosure is warranted. See 18 U.S.C.App. §§ 1-16 (1994) (Classified Information Procedures Act).