Petition — Leggett & Platt, Inc. v. United States

Supreme Court brief1977

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IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1976

No. —@G§=§8 5 5

LEGGETT & PLATT, Lwe,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT G. STACHLER

MURRAY S. MONROE

JOHN R. PHILLIPS

Taft, Stettinius & Hollister

600 Dixie Terminal Building

Cincinnati, Ohio 45202

Attorneys for Petitioner,

LEGGETT & PLATT, INC.

Tax Jounson & Haapin Co., Law Painters

Cimcinnati, Onto

INDEX

Page

I s Ck6' du. sd uikdheks dace hea ee cede 1

STR See PEO w ere Genes wee, A 2

es cate cath sed nee dh wea beeen 2

GRE re re rare aa 3

A SD sc chndwwicdee ce eneeh 3

PD Gr GE ok onc ccc ccccccecsecce 3

The Discovery Requests ..................... 3

The District Court’s Consideration of the

Documents ....... DCkEN Shh eG chee eeaeess 5

The District Court’s Dismissal ............... 6

The Government’s Appeal as to Some of the

Documents .......... Dob ueuseeewenaus abe 7

The Vacating of the Dismissal Order .......... 7

Reasons for Granting the Writ of Certiorari ........ 11

1. The Sixth Cireuit’s Failure to Consider the

Entire Record Conflicts With a Decision of This

Court and Seriously Undermines the Use of

I gre tees cece wud se eei ues wee 11

2. The Sixth Circuit’s Refusal to Accept Decisions

of the District Court on Discretionery Matters

Unduly Interferes With the District Court’s

Ability to Control Its Docket, With the Ex-

peditious Administration of Justice, and With

the Use of In Camera Proceedings ......... 12

3. The Sixth Circuit’s Overly Strict Requirement

of Proof for Production Makes It Virtually Im-

possible to Obtain Government Antitrust Docu-

ments Vital to the Defense of Government

EE hath nkkndensddenneecdeeeeaaeeeds 14

4. The Sixth Circuit’s Undue Extension of the

_ Work Product Doctrine Conflicts With a Deci-

sion in Another Circuit and Gives the Govern-

ment an Unfair Litigating Advantage ...... 17

CITATIONS

CASES Page

Abel Inv. Co. v. United States, 53 F.R.D. 485 (D.Neb.

Occ dUbcee ek ber ae cake cheene se seed > 17

Bass v. Gulf Oil Corp., 304 F.Supp. 1041 (S.D. Miss.

ET Sd an ao Chas Hk Sanh ee 44K oor eee OO - 13

Burlington Indus., Inc. v. Exxon Corp., 65 F.R.D. 26

Peers eawe SU e ds Che RRA VA 18

Carr v. Monroe Mfg. Co., 431 F.2d 384 (5th Cir.),

cert. denied, 400 U.S. 1000 (1970) ............ 10

Commonwealth of Puerto Rico v. SS Zoe Colocotroni,

Se Fas Ge CU as STO) nc ccc cessesesecs 10

Duplan Corp. v. Moulinage et Retorderie de Chavanoz,

487 F.2d 480 (4th Cir. 1973), 509 F.2d 730 (4th

Cir. 1974), cert. denied, 420 U.S. 997 (1975) ..17,18

Fears v. Burris Mfg. Co., 436 F.2d 1357 (5th Cir.

DE tava dee oes daha k da nie WEA ous ons 11,14

Garfinkle v. Arcata Nat’l Corp., 64 F.R.D. 688 (S.D.

RS Ee eae rs 10

Hanover Shoe, Inc. v. United Shoe Mach. Co., 207 F.

SY CO UA ED cc ncuscccansenccs 17

Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D.

no vn ag dt ben ek san ceeds 17

Hodgson v. General Motors Acceptance Corp., 54

fee Ff. % | eee eee 10

Jaffee v. Dunham, 352 U.S. 280 (1957) ............ 10

Midland Inv. Co. v. Van Alystyne, Noel & Co., 59

Pe Oe Sac BPP cccccccsccesnoass 17

National Hockey League v. Metropolitan Hockey Club,

Inc., 44 U.S.L.W. 3754 (U.S. June 30, 1976) ..2, 12

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) 19

Olson Rug Co. v. NLRB, 291 F.2d 665 (7th Cir.

DE ns onc ehh dase ka eke chun eS ee Kas KeeeES 8, 13

Olympic Fastening Systems, Inc. v. Textron, Inc., 504

F.2d 609 (6th Cir. 1974), cert. denied, 420 US.

ED kee + s-coNeaneenrewennendabeke 10

Page

Ott v. Speedwriting Publishing Co., 518 F.2d 1143

ee ae og kg wdhee eet 17

Peterson v. United States, 52 F.R.D. 317 (S.D. II.

| st | Cee ee ME, bp5s a9 0 pres 17

Philadelphia Elec. Co. v. Anaconda Am. Brass Co.,

275 F.Supp. 146 ( E.D. Pa. EE ene alates 18

Schnectady Chem., Inc. v. General Elec. Co., 19 F.R.

Serv.2d 1132 (N.D.N.Y. 1975)... 0.0... seen eee 10

Swanner v. United States, 406 F.2d°716 (5th Cir.

ECE Saas US ance green ea 14

Thill See. Corp. v. New York Stock Exch., 57 F.R.D.

133 (E.D. Wis. 1972) .......... 10, 13, 16, 17, 18

Tobacco & Allied Stocks, Inc. v. Transamerica Corp.,

16 F.R.D. 534 (D. Del. 1954) ................ 17

United States v. Brown, 478 F.2d 1038 (7th Cir. 1973) 10

United Sattes v. International Business Mach. Corp.,

No. 76-3035 (2d Cir. July 19, 1976) .......... 11

United States v. International Business Mach. Corp.,

21 F.R.Serv.2d 1126 (S.D.N.Y. 1976) ....... 11, 17

United States v. Internatioanl Business Mach. Corp.,

BA a) Bt tS ® Oe. | ee 14

United States v. International Business Mach. Corp.,

66 F.R.D. 154 (S.D.N.Y. 1974) .............. 11

United States v. O.K. Tire & Rubber Co., 71 F.R.D. 465

2 2 Rr a ee hore 18

United States v. San Antonio Portland Cement Co.,

83 F.R.D. 513 (W.D. Tex. 1963) ............. 16

Westinghouse Elec. Corp. v. City of Burlington, Vt.,

$351 F.2d 762 (D.C.Cir. 1965) .............06- 9

Wood v. Breier, 54 F.R.D. 7 (E.D. Wis. 1972) ...... 9

STATUTES

15 U.S.C. § 18; Clayton Act, Section 7 ............. 3

Ne TT ee i eeaeeewees 2

Page

RULES OF COURT

Federal Rules of Civil Procedure,

Rie SUG AD. ns avcicceneces ceces daneeseaet 14

Be GOED GD nd de deddccscéstsanecuannne 3, 7

Bo, ) errr: 3

Rae SPUD) CH) CS). oc voecvcccsccnessesesesees 3, 4

Bee BEB). co ccccccccocesssucescenecsuen 3, 8, 25

SECONDARY AUTHORITY

Wright and Miller, Federal Practice and Procedure

CSEED Ss GHD oc ccc cecseccssdbecueneeeen

Pee 19

ROGGE D «cc weccecsscceeceeeseeseeeessveueen la

(SS OTT 10a

ROREEEEE G 22. ccccccscuncvoccewesescueaeeueeen 20a

PS PP 2la

_ § PTT TTT 24a

ABBOT FT onc cccccccsvcescccccoscccsgaceuceen 26a

IN THE

Supreme Court of the United States

October Term, 1976

No.

LEGGETT & PLATT, INC.,

Petitioner,

UNITED STATES OF AMERICA,

‘ Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner Leggett & Platt, Inc. respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals entered in

this proceeding on September 29, 1976.

OPINIONS BELOW

The opinion of the court of appeals is unofficially re-

ported at 1976-2 Trade Cas. {| 61,124 and appears herein

as Appendix A, at pages 2a-9a. The opinion of the district

court is unofficially reported at 1975-1 Trade Cas. {| 60,220

and 19 F.R.Serv.2d 1370, and appears herein as Appendix

B, at pages 10a-19a. The modifying order is unofficially

reported at 1975-1 Trade Cas. {| 60,269, and appears herein

as Exhibit C, at page 20a.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on September 29, 1976. This petition

for certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

(1) Under National Hockey League v. Metropolitan

Hockey Club, Inc., didn’t the Government’s bald refusal to

produce over 1,000 pages of documents, concerning which

it did not raise any or any proper objection on appeal, suffi-

ciently support the district court’s order to dismiss the

complaint without prejudice for failure to comply with the

court’s order to produce?

(2) In view of National Hockey League v. Metropolitan

Hockey Club, Inc., isn’t it improper for a court of appeals

to substitute its judgment for the discretionary decision of

the district court as to the production of documents since

the district court reviewed the documents in camera and

the court of appeals did not?

(3) Since the district court reviewed the documents,

in camera, and fully considered the evidence and argu-

ments as to the production of the documents before order-

ing the documents to be produced, isn’t it improper for a

court of appeals to reverse and order the district court

to re-review the documents and make specific document by

document findings of such matters as relevance, de-

fendant’s need, the availability of the information else-

where, and other matters, particularly where the Govern-

ment refused to make the documents available to defendant

for analysis of these very issues?

(4) Doesn’t the Sixth Circuit’s over-broad interpretation

of the work product doctrine unduly prevent discovery of

relevant information in the hands of the Government?

STATUTORY PROVISION INVOLVED

’ No statutes are involved. Rules 26(b) (3), 37 (a) (2),

37(b) (2) (C) and 52(a) of the Federal Rules of Civil

Procedure are set out in Appendix D, at pages 21a-23a.

STATEMENT OF THE CASE

History of the Lawsuit

On May 18, 19/1 the United States Department of Jus-

tice (“Government’’) filed this civil antitrust action against

Leggett & Platt, Inc. (“LP”) alleging that LP’s January,

1968 acquisition of Motor City Spring Company and its

March, 1969 acquisition of J. R. Greeno Company violated

Section 7 of the Clayton Act (15 U.S.C. § 18). For the

preparation of its defenses, LP sought to obtain docu-

ments from Government investigations of other acquisitions

relating to the structure of the relevant industry, which the

Government refused to produce.

After examining over 7,000 documents in caméra and

considering and re-considering the argument of both sides

as to the Government’s many claims of privilege, the dis-

trict court ordered production. (Pages 10a-l1la). When the

Government still refused to produce approximately eight

inches of documents (Pages 24a-25a), the court dismissed

the case under Fed. R. Civ. P. 37(b) (2) (C). (Page 19a).

The dismissal was without prejudice. (Page 20a). The

Government then appealed from the district court’s ruling

as to only part of the documents it had refused to pro-

duce. On September 29, 1976 the Court of Appeals for the

Sixth Circuit vacated the dismissal and remanded the

case.

The Discovery Requests

The Government’s principal charge was that LP and the

two acquired companies manufactured and sold inner-

springs and boxsprings for the bedding industry, which

comprised lines of commerce adversely affected by the

acquisitions in geographic markets east of the Rockies and

particularly in Michigan and Ohio. The accuracy of these

geographic and product market definitions were among

the principal issues in the case.

On August 9, 1971, LP served interrogatories to iden-

tify the Government’s market studies, investigations, re-

ports, ete. concerning these markets. Although the Govern-

ment answered these interrogatories and agreed to update

its answers, it did not disclose that since the initial LP

acquisition in question it had already investigated at least

two other acquisitions in the same industry or that it subse-

quently investigated at least two more. By late 1974, LP

learned of sonie of the Government’s undisclosed investiga-

tions through depositions of third parties.

These Government investigations of other acquisitions in

the industry dealt with many of the same issues as were

involved in the instant case, such as the geographic and

product market, the existence and effect of substitute

products, the ease of entry into the market, trends towards

concentration in the industry, the market share of the

industry, and related matters. In general, a great mass of

statistical information and opinions was developed in these

investigations from industry sources as to competitive

conditions and the market position of the manufacturers.

In addition, the depositions developed that there were

serious discrepancies between some of the market figures

cited in the depositions in the instant case and the informa-

tion previously reported to the Government in the other

investigations.

Meanwhile, the case was set for trial in March, 1975 and

LP met with hostility and lack of cooperation in its own

efforts to obtain market information from these sources.

The Government refused to update its discovery re-

sponses and told LP that under no circumstances would it

produce any documents from the undisclosed investiga-

tions. (Page 24a). LP thereupon served a formal Request

to Produce. The Government refused to comply and count-

ered with a motion for a protective order, claiming lack of

relevance, undue burden, confidential business information,

prosecutorial discretion and attorney work product, and

further argued that it should not be required to produce

the documents since they were inconveniently located and

the Government did not intend to use them. LP refuted

the Government’s claims and asserted its need for the in-

formation and inability to obtain it elsewhere.

The District Court’s Consideration of the Documents

The parties submitted affidavits, deposition testimony

and extensive briefs to the court. LP repeatedly demon-

strated the relevancy of the documents, its need for them

and its inability to obtain them elsewhere. To the extent

that LP had knowledge of specific documents, it related its

proof to these documents, including proof that the Govern-

ment had documents in its files showing deliberate fabrica-

tion by one of the Government witnesses. The court held

a number of conferences and hearings on this matter at

which the parties’ respective contentions were repeatedly

aired. The district court narrowed LP’s Requests three

different times. It ordered the Government to identify the

relevant Justice Department Antitrust Division investiga-

tions of the industry, then noted their probable relevance

and ordered the Government to show cause why the re-

quested documents should not be discoverable, and finally

ordered the Government to produce for in camera in-

spection documents which it had resisted producing.

During the month of January, 1975, the court pains-

takingly examined, analyzed and numbered each of ap-

proximately 7,000 documents which the Government sub-

mitted to it under claims of “confidential business in-

formation,” work product or both. True to its word, the

Government claimed some form of privilege as to every

document. However, it did not identify the specific nature

of the documents or their authors to LP. Fol'owing its

reviev, the court returned the Government’s documents

and, on February 3, 1975, ordered production within five

days of those documents claimed to be “confidential busi- .

ness information” and those claimed to be work product

from closed investigations. _

‘The Government informed LP’s counsel that, despite the

district court’s order, it refused to produce an eight-inch

stack of documents estimated to be approximately 20% of

the total (1,400 pages). (Pages 24a-25a). Having “thor-

oughly re-examined” the documents, the Government moved

for reconsideration, re-submitting only 38 of the original

7,000 pages of documents to the court. For the first time,

it claimed “governmental privilege” as to these 38 pages.

LP’s position remained that its need for the documents and

its inability to otherwise obtain the information sought

were sufficient to overcome the Government’s claims of

privilege (which LP also disputed).

The District Court’s Dismissal

Despite an impending trial date, the court considered the

Government’s new arguments and re-reviewed documents

im camera. On March 6, 1975, it issued an opinion denying

the Government’s Motion for Reconsideration. After noting

that the “governmental privilege” claimed was not a statu-

tory or constitutional privilege and did not involve state

or military secrets or the identity of informers, the court

applied “the traditional weighing and balancing of inter-

ests,” considering “the government’s interest in preserving

the privacy of its internal consultative and deliberative

processes” against the policy of bring to light “all of

the relevant evidence.” (Pages 17a-18a).. With respect to

the work product claims, the court also stated that “when

an investigation is closed a work product privilege termi-

nates.” (Page 12a).

When the Government still refused to produce approxi-

mately 1,400 pages of documents (Page 25a), the court

dismissed the case without prejudice. At the time of the

dismissal, the scheduled trial was barely two weeks away.

The Government’s Appeal as to Some of the Documents

After the dismissal, the Government again re-examined

‘the documents it had refused to produce and determined

that its claims of privilege as to some of them were

“marginal’’. It then appealed to the Court of Appeals for

the Sixth Circuit the district court’s ruling as to only 364

of the approximately 1,400 pages of documents it had re-

fused to produce. For the first’ time, the Government pro-

duced an index of the documents.

The Vacating of the Dismissal Order

Apparently without looking at the documents, the Sixth

Circuit vacated the district court’s dismissal and re-

manded the case. Among other things, it ordered the dis-

trict court to do the following:

(1) Make “explicit” findings of relevance as to the docu-

ments. (Pages 3a, 9a).

(2) Extend the protection of Fed. R. Civ. P. 26(b) (3)

to work product documents generated in closed

investigations. (Pages 7a-9a).

(3) Permit discovery of relevant materials otherwise

covered by work product or governmental privilege

as to which LP’s “objective” need outweighs the

Government’s qualified interest in secrecy. (Page

5a).

In order to conclude, as it did, that the district court

had abused its discretion in dismissing the complaint, the

Sixth Circuit had to take the following steps:

(1) It ignored the entire three-year history of the

proceedings and the fact that the district court had in-

spected the documents once, and in some cases twice, in

camera. The Sixth Circuit based its decision entirely on the

district court’s opinion of March 6, 1975, which by its terms

addressed itself to the issue of governmental privilege.

(Page 12a).

(2) It ignored the fact that the Government refused to

produce approximately 1,000 pages of documents as to

which the Government never appealed.

(3) It ignored the fact that as to some of the documents

concerning which the Government did appeal, the Govern-

ment asserted no ground of privilege, but only that the

documents were irrelevant—not a basis for failure to

produce documents under the Federal Rules.

(4) It ignored the fact that the Government’s only objec-

tion on appeal as to approximately 115 pages of documents

was never even raised before the district court.

In reversing, the Sixth Circuit basically dealt with 364

pages of documents—about one-fourth of those withheld

by the Government. As to those, the Court overrode the

district court’s discretion on the following matters:

(1) The Sixth Circuit’s statement that the district court

“failed to explicitly determine the relevancy of the requested

documents” ignores the fact that the district court not only

had examined the documents in camera,' but had extensively

considered the relevancy of the documents as well as the

relevancy of the various investigations and the acquisitions,

the products and the geographical markets they involved.’

1 Such in camera examination provides “the short answer to the

relevancy argument.” Olson Rug Co. v. NLRB, 291 F.2d 655, 660

(7th Cir. 1961).

2 All of the other investigations involved the same industry,

the same products and the same geographical market. In addition,

one of them involved an acquisition in the same state during the

same year as one of the LP acquisitions charged to be illegal and

involved documents specifically referring to LP.

Extensive deposition testimony, affidavits, briefs and oral

argument had been presented to the district court as a

basis for its consideration of the documents. The Sixth

Circuit’s position further overlooks the fact that Rule

52(a) does not require specific findings of fact in this

instance.

(2) In the district court, the Government belatedly

asserted a qualified governmental privilege as to only 38

pages of the documents.’ The Sixth Circuit found that the

district court “propertly [sic] applied a balancing test in

determining whether LP could pierce the qualified govern-

mental official information privilege” but seized upon a

single word—‘“deem”—to conclude erroneously that the

district court had considered LP’s “subjective” need for

the documents rather than its “objective” need. Again, the

court of appeals failed to recognize that, after dealing with

the documents for three months, the district court knew the

issues in the case, the arguments of the parties and, most

significantly, the content of the documents—having ex-

amined each of them at least once.

In addition, the Sixth Circuit’s own Opinion recognizes

the consensus of the case authority that, ordinarily, the

government should not be permitted to withhold the con-

tents of closed investigations.‘ On this basis alone, the

8 While the Government claimed that there were other docu-

ments subject to this privilege which it would submit if the Court

desired, there is no record that the Government did submit any

additional documents nor is there anything in the record which

identifies the other documents to which the Government referred.

This is insufficient identification to assert a claim of privilege.

Westinghouse Elec. Corp. v. City of Burlington, Vt., 351 F.2d 762,

770 (D.C. Cir. 1965).

Governmental privilege was asserted on February 7, 1975, almost

two months after formal proceedings had been conducted as to

the production of the documents. It was plainly an afterthought.

If the Government felt it had a strong case on this “recognized

rule,” it would have asserted it in the first instance.

*The Sixth Circuit cited Wood v. Breier, 54 F.R.D. 7, 10 n. 18

(E.D. Wisc. 1972), which catalogues numerous other cases to this

effect (Page 6a).

Sixth Circuit seems to recognize that the district court

was correct in ordering production.*

(3) In the Sixth Circuit, the Government asserted work

product only as to about one-sixth of the documents it

finally withheld.* Although the Sixth Circuit’s Opinion

apparently requires that the district court individually de-

termine whether a given document was prepared in antici-

pation of litigation, the Government made no such showing

in the district court as to any document.’ It did not even

claim privilege by its administrative officer as required by

law.® Instead, the Government simply presumed that all of

its investigatory files were “in anticipation of litigation”

even though the investigations were closed without ever

leading to litigtaion (with one exception). The court of

appeals could and should have affirmed the denial of the

work product claims on this basis alone.’

The Sixth Circuit’s Opinion admits that a division of

authority exists as to the application of the work product

5 If the decision of the district court were correct on any basis,

it should be affirmed. Jaffee v. Dunham, 352 U.S. 280 (1957);

Olympic Fastening Systems, Inc. v. Textron Inc., 504 F.2d 609

(6th Cir. 1974), cert. denied, 420 U.S. 1004 (1975).

®In the Sixth Circuit, the Government asserted work product as

to approximately 240 of the approximately 1400 pages of documents

it withheld.

™ Unsupported claims of “work product” are inadequate to invoke

the limited immunity of the work product doctrine, for the party

resisting discovery bears the burden of establishing that the work

product doctrine does apply. Commonwealth of Puerto Rico v. SS

Zoe Colocotroni, 61 F.R.D. 653, 658 (D.P.R. 1974); Schenectady

Chem., Inc. v. General Elec. Co., 19 F.R.Serv.2d 1132, 1133 (N.D.

N.Y. 1975); Garfinkle v. Arcata Nat’l Corp., 64 F.R.D. 688, 690

(S.D.N.Y. 1974). In United States v. Brown, 478 F.2d 1038, 1041

(7th Cir. 1973), the work product protection did not apply where

the defendant failed to meet this burden.

* E.g., Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387

(5th Cir.), cert. denied, 400 U.S. 1000 (1970); Thill Sec. Corp. v.

New York Stock Exch., 57 F.R.D. 133, 188 (E.D. Wis. 1972);

Hodgson v. General Motors Acceptance Corp., 54 F.R.D. 445, 446

(S.D. Fla. 1972).

® See note 5, supra.

doctrine to closed cases, and that no definitive rule existed

in the Sixth Circuit. (Page 7a). In fact, this division

of authority is, at least in part, a product of the Govern-

ment’s simultaneous efforts to establish different rules in

different circuits, depending on whether its documents or

those of its adversary are in question.’® Under these cir-

cumstances, the district court has a discretion to apply

either of the acceptable, established rules of law which it

feels most applicable." It is submitted that by applying to

the Government the rule it had established elsewhere, the

district court did not abuse this discretion.

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

1. The Sixth Circuit’s Failure to Consider the Entire Rec-

ord Conflicts with a Decision of This Court and Seri-

ously Undermines the Use of Rule 37.

The record demonstrates that the Government refused

to produce a vast number of documents as to which it

raised no question on appeal.’ As to many of those on

10 Compare the Government’s position in the instant case with

that in United States v. International Business Mach. Corp., 21

F.R.Serv.2d 1126 (S.D.N.Y. 1976), and United States v. Interna-

tional Business Mach. Corp., 66 F.R.D. 154 (S.D.N.Y. 1974) mis

11 Jf the application of a privilege is not settled law, the district

court’s determination of the application of the privilege should not

be reversed in the absence of a clear showing of abuse of discre-

tion. See, Fears v. Burris Mfg. Co., 436 F.2d 1357, 1362 (5th Cir.

1971). we mae

The Government argued this very proposition in its lawsuit

against IBM, and was ultimately successful in sustaining its posi-

-tion in the Second Circuit. (Pages 26a-28a). On July 19, 1976, the

Second Circuit denied IBM’s petition (No. 76-3035) for a writ of

mandamus vacating the order in United States v. International

Business Mach. Corp., 21 F.R.Serv.2d 1126 (S.D.N.Y. 1976).

12 After the dismissal, the Government filed a document in the

district court in which it admitted that the number of documents

for the appeal was less than the number which it had refused to

produce. The record indicates that this amounted to about 1,000

pages out of 1,400 pages.

which it did appeal, the appeal was improper since the

only issue as to the document was. not raised below.** At

least 80% of the documents withheld fell within one of

these two categories, and no reviewable issue even existed

as to them. The court of appeals should have affirmed the

district court’s decision because of the failure of the

Government to produce these documents.

Sub silentio, the Sixth Circuit has adopted a rule that

if the Government’s position is correct as to any single

document, the district court’s dismissal based on the

Government’s refusal to produce a mass of documents will

be reversed—even though the dismissal is without preju-

dice. This procedure would render meaningless the sanc-

tions of Fed.R.Civ.P. 37 and is clearly at variance with

this Court’s injunction in National Hockey League v.

Metropolitan Hockey Club, Inc.* that the entire record in

the court below should be considered.

The effect of the decision is far-reaching. It would permit

a party, such as the Government in this case, to innundate

a district court with documents to review on the chance

that, if ordered to produce them, it can refuse and avoid

the sanctions of Fed.R.Civ.P. 37 if its position is cor-

rect as to any single document. If permitted to stand, this

decision will encourage abuses of the discovery process

and greatly increase the burden on the federal court

system.

2. The Sixth Circuit’s Refusal to Accept Decisions of the

District Court on Discretionary Matters Unduly Inter-

feres with the District Court’s Ability to Control Its

Docket, with the Expeditious Administration of Jus-

tice, and with the Use cf In Camera Proceedings.

National Hockey League v. Metropolitan Hockey Club,

18 Approximately 115 pages, or about one-third of the 364

pages of documents on appeal, fall within this category.

'*44 U.S.L.W. 3754 (U.S. June 30, 1976).

Inc."* teaches that (a) the district court is required to con-

sider the full record in determining whether to dismiss for

failure to comply with the discovery order; and (b) the

court of appeals should review the district court’s decision

to determine whether there has been an abuse of discretion

and not to determine what it would have done if the matter

had been presented to it as an original matter. In the

instant case, the Sixth Circuit not only did not consider

the entire record before the district court, but substituted

its judgment for that of the district court on a number

of discretionary matters. There is no indication in the Opin-

ion that the Sixth Circuit reviewed any of the documents.

It dealt almost solely with the district court’s Opinion of

March 6, 1975, which, by its terms, was addressed to the

Motion for Reconsideration involving the governmental

privilege issue.

The court of appeals failed to consider the fact that

the district court considered the issues over a three-month

period, had three hearings or conferences on the matter,

issued at least five orders in reference to the documents,

and personally inspected the documents, in camera, at least

once and, in some cases, twice. It failed to consider that

the Government was in default for a period of over three

years. The Sixth Circuit took an individual word from the

district court’s Opinion ** and from that word concluded

that the district court had dealt with LP’s need for the

documents on a subjective basis rather than on an objective

basis.

15 Td.

16 The court of appeals admitted that the district court “propertly

[sic] applied a balancing test” but faulted the court for “finding

that LP’s subjective need, its ‘deem[ing|’ the documents ‘essen-

tial,’ overrode the government interest in secrecy.” (Pages

4a-ba).‘ Obviously the district court would not have had to review

the documents to find only subjective need. By the same token, LP

was not even told what the documents were. Any fair reading of

the record demonstrates that the district court found “objective”

need.

The same analysis applies to the circuit court’s Opinion

as to the relevancy of the documents. It has ordered the

district court to re-review the documents to make “ex-

plicit” determinations of relevancy.’ Again, it ignores the

months of consideration of the documents and the personal

examination of the documents by the district court. It

ignores the court’s early finding of probable relevance

and its “explicit” concern for discovery of “all the relevant

evidence.” (Page 18a). In substance, the court of ap-

peals was simply unwilling to accept the fact that the

district court found the documents relevant and that LP

needed them."* |

This inhospitable attitude seriously undercuts the use

of in camera proceedings and increases the burden on the

districts courts in their use. At best, an in camera review

imposes a difficult burden on a district judge. He must

read and analyze the documents, relate them to the issues

'* The Sixth Circuit’s reversal as to the issue of relevancy is

erroneous also because the Sixth Circuit, from its Opinion, applies

the wrong standard itself. Under Rule 26(b) (1) covering relevancy

in discovery, it is provided as follows:

“It is not ground for objection that the information sought

will be inadmissible at the trial if the information sought

appears reasonably calculated to lead to the discovery of admis-

sible evidence.”

The rule makes discovery proper “where there is any possibility

that the jiaformation sought may be relevant to the subject

matter of the action.” United States v. International Business

Mach. Corp., 66 F.R.D. 215, 218 (S.D.N.Y. 1974); Bass v. Gulf Oil

Corp., 304 F. Supp. 1041, 1045 (S.D. Miss. 1969). Accord, 8 Wright

and Miller, Federal Practice and Procedure (Civil): § 2008 at 47.

‘8 As in Thill Sec. Corp. v. New York Stock Exch., 57 F.R.D. 133,

136 (E.D. Wisc. 1972), the Government “may be considered reposi-

tories of expertise in these matters. They have specifically gathered

evidence and analyzed it in order to arrive at their present posi-

tions. .. . I believe that the evidence collected and the expertise of

staff personnel which is ascertainable through memoranda is rele-

vant for discovery purposes and would aid the [discovering party]

in preparing its case... .” As the court recognized in Olson Rug

Co. v. NLRB, 291 F.2d 655, 660 (7th Cir. 1961), in camera inspec-

tion of documents is the simplest way to resolve the Government’s

broad claims that the documents are irrelevant.

in the case, and make the other determinations necessary

to ascertain if the privilege applies. A litigant who has

not seen the documents can be of only limited help in

assisting the court to focus on the issues as to any single

document.” The problems are greatly compounded when

.a-great number of documents are submitted in camera

and the producing party makes many and varied objec-

tions—as happened in this case. Historically appellate

courts have recognized these problems and given due defer-

ence to the district court’s decision.” This is the only

case we have found in which an appellate court which did

not review the documents reversed a district court that

did. If left standing, this decision will substantially inter-

fere with.the district courts’ ability to control their dockets

and to speedily administer justice.

3. The Sixth Circuit’s Overly Strict Requirement of Proof

for Production Makes It Virtually Impossible to Obtain

Government Antitrust Documents Vital to the Defense

of Government Suits.

By the Sixth Circuit’s imposition of strict standards of

‘proof upon LP to obtain documents from the Department

of Justice, the court of appeals has practically conferred

upon the Department of Justice an immunity obviously not

available to a defendant to protect its documents. This

affects not only LP, but all other defendants which may

be in the unfortunate position of being sued by the United

States through the Department of Justice.

The Department is basically staffed by attorneys. If

this case is an example, the Department will claim work

product privilege as .o most, if not all, of the documents

1° E.g., Swanner v. United States, 406 F.2d 716, 718 (5th Cir.

1969). ,

2° The usual rule is that questions concerning the disclosure of

government documents are within the discretion of the trial court

and will not be reversed in absence of a clear abuse of discretion;

e.g., Fears v. Burris Mfg. Co., 436 F.2d 1357, 1362 (5th Cir. 1971).

generated internally, including market studies by Govern-

ment economists. Thus, it can be expected that the work

product doctrine and governmental privilege claims will

be asserted as to most of the internal documents. Under

the Sixth Circuit’s decision, ss to any single Government

document developed by its attorneys or its economists under

an attorney’s direction, LP must make a showing and the

District Court must make an “explicit finding,” appar-

ently document by document, that (a) the document is

relevant,”’ (b) LP’s objective need for the document over-

rides the Government’s interest in secrecy, (c) the docu-

ment is important to LP’s defense and the information

probably cannot be obtained elsewhere, (d) the document

does not include mental impressions, opinions or legal

theories of the attorney or any other legal representative,

and (e) the document was not generated in anticipation of

litigation.”

The Sixth Circuit’s strict standards seem te preclude

the use of generalized proof of relevancy and need. It will

be remembered in this case that the elaborate showing

of need made by LP was apparently thought to be insuffi-

cient by the Sixth Circuit since it was not made document

by document. The problem is compounded, if not rendered

impossible, py the fact that even the attorneys for the

defendant are not allowed to see the documents. If the

defendant is fortunate to convince the district court to

inspect the documents, in camera, he must then convince

the district court to make elaborate findings as to the

*1 As pointed out in note 17, supra, the Sixth Circuit’s apparent

standard is even more strict than the law heretofore has indicated.

22 In this case, even though the Government made no showing

that the documents were produced in anticipation of litigation and,

for that matter, made no formal claim of privilege, the Sixth

Circuit’s decision assumes that all Government investigations are

presumptively in anticipation of litigation. The decision appears

to put an affirmative duty on LP to show that the documents were

not made in anticipation of litigation.

foregoing. This places a tremendous burden on the court

and will seriously hinder the use of in camera proceedings.

It gives the Government sweeping authority to protect its

files. It is submitted that the Sixth Circuit’s Opinion in-

directly does exactly what other courts have refused to do

directly.” In Abel Inv. Co. v. United States,” the court

stated as follows:

To some exteni the government seems to be taking

the position that because continuity can be shown from

audit to litigation, in that each report is submitted

to the person who must make the next determination

in a process which may lead to trial, any report or

document prepared by any link in the chain is pre-

pared in anticipation of litigation. If this court were

to so hold, it would indeed put the government in a

position markedly advantageous to that of a private

litigant. I think that any government agency whose

determinations might lead to litigation could show the

same continuity, as all serve the same master; but to

hold that any intra-agency or inter-agency report

which eventually could be relayed to the attorney who

must try the case for the government is a report or

document prepared in anticipation of litigation would

be effectively to shield all government reports, This is,

I think, clearly contrary to the intent of Rule 26.

In addition to the foregoing, the decision of the Sixth

Circuit conflicts directly with Fed.R.Civ.P. 52(a), which

expressly provides that such findings are not necessary in

this type of proceeding.”

For the foregoing reasons, the Sixth Circuit’s reversal

of matters which are clearly discretionary with the district

23 See, Thill Sec. Corp. v. New York Stock Exch., 57 F.R.D. 133

(E.D. Wisc. 1972) ; Peterson v. United States, 52 F.R.D. 317 (S.D.

Ili. 1971); United States v. San Antonio Portland Cement Co.,

33 F.R.D. 513 (W.D. Tex. 1963).

**53 F.R.D. 485, 490 (D. Neb. 1971) [emphasis added].

25 See also, Ott v. Speedwriting Publishing Co., 518 F.2d 1143

(6th Cir. 1975).

court and the imposition of impossible burdens of proof on

a party seeking discovery should be reversed.

4. The Sixth Circuit’s Undue Extension of the Work

Product Doctrine Conflicts with a Decision in Another

Circuit and Gives the Government an Unfair Litigating

Advantage.

There is a split of authority as to whether the work

product doctrine applies only to documents generated in

reference to the litigation in which they are to be produced

or whether it also applies to documents generated in refer-

ence to “closely related” litigation.** While acknowledging

this split, the Sixth Circuit has granted the Government

new and far-reaching power to avoid discovery by extend-

ing the work product immunity far beyond any decision

cited in its Opinion. The Fuurth Circuit’s Duplan* deci-

sion, upon which the Sixth Circuit so strongly relies, was

expressly restricted to the

narrow question whether upon the termination of

litigation the work product documents prepared inci-

dent thereto lose the qualified immunity [of Fed.R.

Civ.P. 26(b) (3) |.”

*6 Compare United States v. International Business Mach. Corp.,

66 F.R.D. 154, 178 (S.D.N.Y. 1974), 21 F.R.Serv.2d 1126 (S.D.N.Y.

1976) ; Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D. 117, 119

(M.D. Pa. 1970) ; Hanover Shoe, Inc. v. United Shoe Mach. Co., 207

F. Supp. 407, 409-10 (M.D. Pa. 1962); Tobacco & Allied Stocks,

Inc. v. Transamerica Corp., 16 F.R.D. 534, 537 (D. Del. 1954); and

Thill See. Corp. v. New York Stock Exch., 57 F.R.D. 133 (E.D.

Wisc. 1972) with Duplan Corp. v. Moulinage et Retorderie de

Chavanoz, 487 F.2d 480 (4th Cir. 1973), 509 F.2d 730 (4th Cir.

1974), cert. denied, 420 U.S. 997 (1975); United States v. O.K.

Tire & Rubber Co., 71 F.R.D. 465 (D. Idaho 1976); Burlington

Industries, Inc. v. Exxon Corp., 65 F.R.D. 26, 43 (D. Md. 1974);

Midland Inv. Co. v. Van Alystyne, Noel & Co., 59 F.R.D. 134, 138

(S.D.N.Y. 1973) ; and Philadelphia Elec. Co. v. Anaconda Am. Brass

Co., 275 F. Supp. 146 (E.D. Pa. 1967).

“7 Duplan Corp. v. Moulinage et. Retorderie de Chavanoz, 487

F.2d 480 (4th Cir. 1973), 509 F.2d 730 (4th Cir. 1974), cert.

denied, 420 U.S. 997 (1975).

** Id., 487 F2d at 481 [emphasis added].

Neither Duplan nor any other case upon which the court

below relies deals with this question in relation to investiga-

tions that did not result in litigation.*” The Sixth Circuit’s

new standard gives the Government a work product im-

munity as to investigations regardless of whether they

result in litigation. As the instant case clearly demon-

strates, the Justice Department will claim that documents

relating to all of its investigations are immune from dis-

covery because litigation was likely when they were under-

taken. In fact, the Government’s position at the district

court was that a presumption existed to this effect. The

resulting, one-sided discovery gives the Government an

unfair advantage in litigation and is a far cry from the

liberal discovery posture of the Federal Rules.

In addition, the Department of Justice has been very

successful in profiting from this split of authority. At the

same time it successfully persuaded the Sixth Circuit to

extend the work product doctrine so as to protect Govern-

ment documents in “other investigations” from discovery,

it was equally successful in persuading the Second Circuit

to permit it to discover a defendant’s work product docu-

ments from other litigation. 30/ It should not

be permitted to have it both ways.

For these reasons, the decision of the Sixth Circuit as to

the scope of work product should be reviewed by this Court.

CONCLUSIONS

Litigation with the Government is difficult even under

ordinary circumstances. In this case the Government has

fought the production of clearly relevant documents at

every turn for a period of three years. It has espoused in-

2° In NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), the

Court seemed to recognize that documents from investigations

wherein the Government determined no complaint should be filed

were not covered by the work product doctrine.

8° See notes, 10, 11, supra.

ili

consistent opinions in different district courts and circuit

courts in order to protect its documents, but gain those of

others. f

For the foregoing reasons, the Petition for Certiorari |

should be granted.

Respectfully submitted,

ROBERT G. STACHLER

MuRRAY S. MONROE

JOHN R. PHILLIPS

Taft, Stettinius & Hollister A p D EF N D i xX

600 Dixie Terminal Building

Cincinnati, Ohio 45202

Attorneys for Petitioner,

LEGGETT & PLATT, INC.

December —, 1976

APPENDIX A

No. 75-1719

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-A ppellant,

LEGGETT & PLATT, INC.,

Defendant-A ppellee.

Appeal from the United States District Court for the

Seuthern District of Ohio

Decided and Filed September 29, 1976.

Before: EDWARDS and PECK, Circuit Judges, and CECIL,

Senior Circuit Judge.

Peck, Circuit Judge. On May 15, 1971, the government

filed the instant civil antitrust action against defendant-

appellee Leggett and Platt (“LP”) to require LP to divest

itself of the March 31, 1968, stock acquisition of Detroit-

based Motor City Spring Company and the January 2,

1969, assets acquisition of Cincinnati-based J. R. Greeno

Company. On January 3, 1975, LP filed amended requests

for the government to produce certain documents, including

documents relating to the government’s investigations, no

more than one culminating in litigation, of other inner-

springs and box springs manufacturers’ acquisitions of

Appendix A

other springs manufacturers.’ Over government objections,

of relevancy, work product, and governmental privilege,

the district court ordered the government to produce the

requested documents, except work products of the govern-

ment’s investigation of LP and of “other open investiga-

tions.” The court, in denying the government’s motion. for

reconsideration, elucidated its reasoning.

“A work product privilege has a terminal point. When

a case has ended or when an investigation is closed a

work product privilege terminates. .. .” 19 Fed. Rules

Serv. 2d 1370, 1872, 1975 Trade Cas. § 60,220.

The court, in rejecting the governmental privilege claim,

found no “clear” or “accepted” privilege applicable,. then

purported to apply a “traditional weighing and balancing

of interests” test, apparently finding LP’s interest in “in-

formation” it “deems essential” sufficient,to overcome “the

government’s interest in preserving the privacy of its inter-

nal consultative and deliberate process, thereby encourag-

ing ‘open, frank discussion between subordinate and chief

concerning administrative action.’ ” The government failed

to comply with the production order, and the district court’

thereafter dismissed the government’s complaint without

prejudice. .

On appeal of the dismissal, the government argues that

the district court improperly ordered production of irrele-

vant and privileged documents, such error thereby invali-

! The discovery rules apply to the government, as a party, just

as to any party, though certain privileges, such as governmental

privilege, may be available only to the government. United States

v. Procter & Gamble Co., 356 U.S..677, 681, 78 S. Ct. 983, 986, ...

L.Ed.2d ... (1958); Amchem Products, Inc. v. GAF Corp., 64

F.R.D. 550, 553 (N.D. Ga. 1974); Moore’s Federal Practice § 26.61

{2} (1976); Wright & Miller; Federal Practice & Procedure § 2013

(1970).

—-

Appendix A

dating the dismissal. Because the district court made no

explicit determination of relevance and failed to properly

apply the government privilege doctrine, and because we

view the work product doctrine as protecting work prod-

ucts of closed investigations, we vacate the dismissal and

remand to the district court for further proceedings.

The Federal Rules of Civil Procedure (FRCP) authorize

“extremely broad,” C. Wright, Law of Federal Courts § 81

at 355 (2d ed. 1970), discovery. Unless the requested docu-

ments are either irrelevant or privileged, FRCP 26(b) (1),

LP was entitled to their production.

That the government failed to prosecute civil antitrust

actions to divest other industry acquisitions is in and of

itself irrelevant because LP’s purported defense of “dis-

criminatory enforcement” is, as a matter of law, no defense.

The government “alone is empowered to develop that

enforcement policy best calculated to achieve the ends con-

templated by Congress and to allocate its available funds

and personnel in such a way as to execute its policy effi-

ciently and economically.” Moog Industries, Inc. v. FTC,

355 U.S. 411, 413, 78 S.Ct. 377, 2 L.Ed.2d 370 (1958).

Accord, FTC v. Universal-Rundle Corp., 387 U.S. 244, 87

S.Ct. 1622, 81 L.Ed.2d 747 (1967) ; Kixmiller v. SEC, 160

U.S. App. D.C. 375, 492 F.2d 641, 645 (1974); United

States v. Hunter, 459 F.2d 205, 220-221 (4th Cir.), cert.

denied, 408 U.S. 934 (1972); L. G. Balfour Co. v. FTC,

442 F.2d 1, 2 (7th Cir. 1971); Robins & Weill, Inc. v.

United States, 63 F.R.D. 73 (M.D.N.C. 1974). There is no

allegation that the proceedings against LP stem from racial

or religious animosity, see, e.g., Oyler v. Boyles, 368 U.S.

448, 454-456, 82 S.Ct. 501, 505-506, 7 L.Ed.2d 446 (1962) ;

Yick Wo v. Hopkins, 118 U.S. 356, 16 S.Ct. 1064, 30 L.Ed.

220 (1886); United States v. Swanson, 509 F.2d 1205,

Appendix A

1208-1209 (8th Cir. 1975), or from a desire to punish LP

for exercising its constitutional rights, see, e.g., United

States v. Berrios, 501 F.2d 1207 (2d Cir. 1974), United

States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc).

Yet investigatory inquiries into other industry acquisi-

tions are relevant, and thereby discoverable unless privi-

leged, to the extent they contain factual materials, such as

surveys and economic analyses of the industry, and the

government analyses. The government’s reply brief admits

their relevancy.’ Because the district court failed to ex-

plicitly determine the relevancy of the requested documents,

the district court on remand should determine the relevancy

in light of the above criteria.

For documents containing relevant material, the district

court should then consider the applicability of government

privilege and work product doctrine.

The district court properly applied a balancing test in

determining whether LP could pierce the qualified govern-

mental official information privilege * to obtain the inves-

tigatory files. But the court erred in finding that LP’s

?“The United States does not claim that any factual materials

relating to the substance of this case are irrelevant. Items contain-

ing substantive information have been included in this appeal

only if they are protected by the work product exemption or gov-

ernmental privilege. . . .” Government Reply Brief 7.

*The government has asserted only its non-statutory official

information privilege. There is no assertion of state secret, military,

informers’ or statutory privilege. See Note, Discovery of Govern-

ment Documents and the Official Information Privilege, 76 Colum.

L. Rev. 142 (1976). The government concedes that its privilege is

qualified rather than absolute.

*Given that the privilege is designed to encourage candid sug-

gestions, advice, recommendations, and opinions, the privilege pro-

tects only suggestions, advice, recommendations, and opinions,

rather than factual and investigatory reports, data, and surveys in

government files. Johnson v. United States, 76-2 U.S.T.C. 4 9.497

(N.D. Ind. 1976) ; Smith v. FTC, 403 F. Supp. 1000, 1015 (D. Del.

Appendix A

subjective need, its “deemling!” the documents “essential,”

overrode the government interest in secrecy. To override

the government interest in secrecy the court must find that

LP’s objective, rather than its subjective, need for the

documents overrides the governmental interest in secrecy.

See, e.g., Sun Oil Co. v. United States, 514 F.2d 1020 (Ct.

Cl. 1975) ; EEOC v. St. Francis Community Hosp., 21 Fed.

Rules Serv. 2d 975, 11 EPD {| 10,806 (D.S.C. 1976) ; Kinoy

v. Mitchell, 67 F.R.D. 1, 11, 14 (S.D.N.Y. 1975); SEC v.

Bausch & Lomb, Inc., 19 Fed. Rules Serv. 2d 332, 334

(S.D.N.Y. 1974) ; Center on Corporate Responsibility, Inc.

v. Schultz, 368 F. Supp. 862, 881 (D.D.C. 1973); Note,

Discovery of Government Documents and Official Informa-

tion Privilege, 76 Colum. L. Rev. 142, 144 (1976). Although

a district court’s balancing of the competing interests will

be reversed only for an abuse of discretion, Brown v.

Thompson, 430 F.2d 1214, 1215-1216 (5th Cir. 1970), the

district court must use the proper interests in its balancing

process.

In assessing LP’s need, the district court should consider,

inter alia, the importance of the documents to LP’s de-

fense, SEC v. Nat’l Student Marketing Corp., 68 F.R.D.

157, 160-163 (D.D.C. 1975), aff'd, CCH Fed. Sec. { 95, 612

1975); In Re Midwest Milk Monopolization Litigation, 60 F.R.D.

12, 19 (W.D. Mo. 1973); Wood v. Breier, 54 F.R.D. 7, 12 (E.D.

Wis. 1972); Note, Discovery of Government Documents and the

Official Information Privilege, 76 Colum. L. Rev. 142, 160-162

(1976). See Ernest & Mary Hayward Weir Foundation v. United

States, 508 F.2d 894, 895 n. 2 (2d Cir. 1974); Kinoy v. Mitchell,

67 F.R.D. 1, 11-12 (S.D.N.Y. 1975); Gaison v. Scott, 59 F.R.D.

347 (D. Hawaii 1973). But see Dos Santos v. O’ Neill, 62 F.R.D. 448

(E.D. Pa. 1974); Simon-Eastern Co. v. United States, 55 F.R.D.

88 (N.D. Ga. 1972). The government’s appellate brief implicitly

acknowledges the inapplicability of governmental privilege to

“purely factual material.” Government Brief 13.

Appendix A

(D.C. Cir. 1976), Kinoy, supra, 67 F.R.D. at 12, Dos San-

tos v. O'Dell, 62 F.R.D. 448 (E.D. Pa. 1974), Amchem

Products, Inc. v. GAF Corp., 64 F.R.D. 550, 553-554 (N.D.

Ga. 1974), Wood v. Breier, 54 F.R.D. 7, 10 (E.D. Wis.

1972), and the availability elsewhere of the information

contained in the documents, Kinoy, supra, United States v.

Illinois Fair Plan Ass’n, 67 F.R.D. 659 (N.D. Ill. 1975),

Dos Santos, supra, 62 F.R.D. 448, Gaison v. Scott, 59

F.R.D. 347 (D. Hawaii 1973), see McKillop v. Regents of

the University of California, 386 F.Supp. 1270, 1277-1278

(N.D. Calif. 1975).

In assessing the government interest in secercy, the dis-

trict court should remember that the requested files are of

completed investigations. Often courts have recognized

that there is less government interest in secrecy in com-

pleted, than in ongoing, investigations. See e.g., Breier,

supra, 54 F.R.D. at 10 n. 18.

The district court viewed the work product doctrine as

being inapplicable to closed investigations. Supporting the

district court’s determination are United States v. IBM, 66

F.R.D. 154, 178 (S.D.N.Y. 1974), ... F.R.D. ... «No.

Civ. 69-200, S.D.N.Y., filed May 14, 1976), Honeywell,

Inc. v. Piper Aircraft Corp., 50 F.R.D. 117, 119 (M.D. Pa.

1970), Hanover Shoe, Inc. v. United Shoe Mach. Co., 207

F. Supp. 407, 409-410 (M.D.Pa. 1962), and Tobacco &

Allied Stocks, Inc. v. Transamerica Corp., 16 F.R.D. 534,

537 (D. Del. 1954). However, Duplan Corp. v. Moulinage

et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973),

* The district court found that the work product doctrine would

bar discovery of “open” investigations, and LP has not appealed

that determination.

* The work product doctrine clearly applies to the work produced

by government attorneys in anticipation of litigation. See NLRB v.

Sears, Roebuck & Co., ... U.S. ..., 95 S.Ct. 1504, 1518 ... L.Ed.2d

... (1975), and the cases cited therein.

Appendix A

509 F.2d 730 (4th Cir. 1974), cert. denied, 420 U.S. 997,

95 S.Ct. 1438, 43 L.Ed.2d 680 (1975), United States v.

O.K. Tire & Rubber Co., 1976 Trade Cas. ‘ 60,984 n. 7 (D.

Idaho 1976), Burlington Industries, Inc. v. Exxon Corp.,

65 F.R.D. 26, 43 (D. Md. 1974), Midland Inv. Co. v. Van

Alystyne, Noel & Co., 59 F.R.D. 134, 1388 (S.D.N.Y. 1973),

and Philadelphia Elec. Co. v. Anaconda Am. Brass Co.,

275 F.Supp. 146 (E.D. Pa. 1967), have found the work

product doctrine applicable to bar discovery of work prod-

ucts in terminated litigation, at least of “closely related”

litigation. Anaconda Brass, supra; Midland Investment,

supra. The irreconcilably conflicting opinions have prompted

courts and commentators to refer to the work product doc-

trine to work product generated in anticipation of other

litigation as lacking “decisive resolution” (Midland In-

vestment, supra, 59 F.R.D. at 138), “unresolved” (Note,

Discovery of an Attorney’s Work Product in Subsequent

Litigation, 1974 Duke L.J. 799, 810), and “not altogether

clear,” (J. Moore, Federal Practice * 26.64(2) (2d ed.

1975) ). Wright and Miller, however, have referred to the

application of the work product doctrine to documents pre-

pared in anticipation of other litigation as “|t]he sounder

view ..., at least if the two cases are closely related.”

Wright & Miller, Federal Practice & Procedure, § 2024 at

200-201 (1970). Duplan, supra, similarly has been hailed

as “maintaining the delicate balance between reasonable

inquiry through discovery and the privacy and professional

integrity of the adversary system.” Comment, Civil Pro-

cedure-—Discovery—Work-Product Privilege Extends to

Subsequent Litigation, 27 Vand. L. Rev. 826, 833 (1974).

Given the absence of definitive language in FRCP 26(b)

(3), see Duplan, supra, 487 F.2d at 482, and the conflicting

decisions, our decision has been difficult. On balance,

though, we view the work product doctrine as protecting

Appendix A

work produced in anticipation of other litigation. As Du-

plan, supra, 487 F.2d at 482-483, recognized, Hickman v.

Taylor, 329 U.S. 495, 67 S.Ct. 385.

“clearly stands for the principle that the integrity of

the adversary process must be safeguarded in spite of

the desirability of the free interchange of information

before trial. Its overriding concern is that the lawyer’s

morale be protected as he performs his professional

functions in planning litigation and preparing his

“(T]he rationale is scarcely less applicable to a case

which has been closed than to one which is still being

contested. The decision was not in any manner based

upon the rights or posture of the litigants vis-a-vis

each other... .

“| W]e find no indication that the Court [in Hickman,

supra] intended to confine the protection of the work

product to the litigation in which it was prepared or

to make it freely discoverable in a subsequent law

suit.”

Were the work product doctrine an unpenetratable protec-

tion against discovery, we would be less willing to apply it

to work produced in anticipation of other litigation. But

the work product doctrine provides only a qualified protec-

tion against discovery, at least of products other than “the

mental impressions, conclusions, opinions, or legal theories

of an attorney or other representative of a party concern-

ing the litigation.” Duplan, supra, 487 F.2d at 485; Work-

Product Privilege Extends to Subsequent, Unrelated Liti-

gation, supra, 27 Vand. L. Rev. at 833. Compare Hand-

gards, Inc. v. Johnson & Johnson, 413 F. Supp. 927 (N.D.

Calif. 1976), with Duplan, supra, 509 F.2d 730.

Our determination that the work product doctrine applies

to work produced in anticipation of other litigation will

Appendix A

require the district court, upon remand, to determine

whether the documents the government claims are work

products are, in fact, work products. See, e.g., Burlington

Industries, supra, 65 F.R.D. at 42-43; Garfinkle v. Arcata

Nat’l Corp., 64 F.R.D. 688, 690 (S.D.N.Y. 1974). Even if

the district court finds the documents are work products

in anticipation of litigation, it may, of course, compel pro-

duction of those documents, should LP have a “substantial

need of the materials in the preparation of [its] case” and

be “unable without undue hardship to obtain the substan-

tial equivalent of the materials by other means,” keeping

in mind that “[i]n ordering discovery of such materials

when the required showing Kas been made, the court shall

protect against disclosure of the mental impressions, con-

clusions, opinions, or legal theories of an attorney or other

representative of a party concerning the litigation.” FRCP

26(b) (3). See e.g., Burlington Industries, supra, 65 F.R.D.

at 33, 43; C. Wright, The Law of Federal Courts § 82 at

366-68 (2d ed. 1970).

On remand, the district court should determine the rele-

vancy of the requested documents, and for documents con-

taining relevant material determine the applicability of the

government privilege and work product doctrines. In de-

termining the applicability of government privilege, the

district court should recognize that it shields only sugges-

tions, advice, recommendations and opinions, rather than

factual and investigatory reports, data and surveys in gov-

ernments files. The district court should similarly deter-

mine the applicability of the work product doctrine, which

we have held applies to work produced in anticipation of

other litigation, and whether LP has made a sufficient

showing to overcome the work production doctrine.

Vacated and remanded.

10a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil No. 7976

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

LEGGETT & PLATT, INC.,

Defendant.

(Filed March 6, 1975)

OPINION AND ORDER

RuBIN, D. J.: This matter is before the Court pursuant

to a motion of plaintiff to reconsider and amend the Feb-

ruary 3, 1975 Order of the Court relating to defendant’s

amended requests to produce, and a motion of the defen-

dant to dismiss this action for failure to comply with the

Court’s Order.

The parties have submitted memoranda, memoranda

contra, affidavits, and exhibits in support of their respective

positions.

The essential determination regarding the plaintiff's

motion to reconsider will be a determination of the appli-

cation of the governmental privilege doctrine. Determina-

tion of the defendant’s motion to dismiss will involve a

fact question as to whether the plaintiff has complied with

this Court’s Order. Rule 37(a)(2), and Rule 37(b) (2)

(C), Fed. R. Civ P.

This action was instituted by the plaintiff on May 18,

1971 pursuant to Section 15 of the Act of Congress of

October 15, 1914, c. 323, 38 Stat. 736 (15 U. S. C. § 25),

lla

Appendix B

as amended, commonly known as the Clayton Act. The

defendant is found and transacts business within the West-

ern Division of the Southern District of Ohio, and is en-

gaged in interstate commerce. The plaintiff is the United

States of America. The parties are thus properly before

this Court, and this Court has jurisdiction over the pro-

ceedings herein.

The instant controversy conce.ns the issue of discovery.

It began with the defendant’s amended requests to produce

documents. These requests were submitted to opposing

counsel and to the Court on December 19, 1974, and were

filed with the Court on Janyary 3, 1975. At a conference

in chambers held in Cincinnati on January 3, 1975 plain-

tiff was directed to submit documents with the Court for

in camera inspection. Some 7,000 pages of documents were

filed and inspected. On February 3, 1975 the Court deter-

mined that some documents were privileged and were re-

turned to plaintiff to retain, while others were held non-

privilged and were ordered delivered to defense counsel

within five days. All documents were returned to plaintiff

at that time. Four days later, on February 7, 1975, plain-

tiff filed a motion to reconsider the Court’s Order of Febru-

ary 3, 1975. Due to a settlement conference between plain-

tiff and defense counsel in Washington, D. C. on February

10, 1975 the Court agreed to delay action on its Order to

produce. The February 10, 1975 discussion failed to yield

a settlement of the case.

On February 11, 1975 defendant communicated with

plaintiff and was informed that in response to a demand

upon plaintiff for the documents ordered produced that the

plaintiff would and did refuse such demand. Accordingly,

as of February 11, 1975 this Court’s Order had been vio-

lated. Further action was again delayed pending a settle-

ment conference ordered by the Court between plaintiff and

12a

Appendix B

defense counsel, with the Court, in Dayton, Ohio on Feb-

ruary 21, 1975.

Prior to the February 3, 1975 Order plaintiff’s claims

of privilege were based primarily upon the work product

doctrine and an asserted privilege of “confidential business

information.” The claims based upon those two privileges

were disposed of by the February 3, 1975 Order. Plaintiff

subsequently, in its motion to reconsider, raised for the

first time a doctrine of “governmental privilege.” This

Opinion is addressed to the application of that doctrine.

We observe that the claims of privilege under both the

work product doctrine and governmental privilege relate

to the same documents. These are documents prepared for

internal governmental functions. Both concepts are recog-

nized by statute and case law. There is, however, one essen-

tial difference. A work product privilege has a terminal

point. When a case has ended or when an investigation is

closed a work product privilege terminates. On the other

hand, the governmental privilege, where applicable, has no

general termination point. For this reason the documents

ordered released in paragraph Two of the February 3,

1975 Order would never be discoverable if they come within

the governmental privilege doctrine.

Governmental privilege is generally divided into five

areas best described in Wright and Miller, Federal Plead-

ing and Procedure at Section 2019:

The United States has, or has claimed, (1) a privi-

lege not to disclose the identity of informers, (2) a

privilege for military or state secrets, (3) a privilege

for certain reports to the government that are made

confidential by nature, (4) a general privilege under

the “housekeeping” statute, and (5) a constitutional

privilege to refuse to disclose whatever the executive

chooses to keep secret.

13a

Appendix B

Identity of Informers, Military or State Secrets,

Statutory Confidentiality

The first three areas of privilege delineated by Wright

and Miller above are not raised by the plaintiff, or by the

facts of the instant controversy. Accordingly they need not

be given further consideration.

II.

General Privilege Under the “Housekeeping” Statute

This area of the privilege has been so clearly resolved

that we need not spend much time here, other than to note

that it is in this area of privilege that the United States

Court of Appeals for the Sixth Circuit has most directly

considered the governmental privilege doctrine.

In Appeal of United States Securities and Exchange

Commission, 226 F. 2d 501 (6th Cir. 1955), the United

States Court of Appeals for the Sixth Circuit was con-

fronted with the situation of a government employee refus-

ing to produce documents. The employee relied on a govern-

mental privilege, and the District Judge held him in con-

tempt and committed him to the custody of the United

States Marshal. The Circuit Court reversed the District

Court decision, and based its holding in favor of govern-

mental privilege on two Supreme Court cases:

The record establishes that the appellant general

counsel acted in conformity with the foregoing rules

of the Commission. In doing so, he was protected in

his claim of privilege by the principles announced in

the opinions of the Supreme Court in United States

ex rel. Touhy v. Ragen, 340 U. 8. 462, 71 S. Ct. 416,

95 L. Ed. 417 and in Boske v. Comingore, 177 U. S.

459, 20 S. Ct. 701, 44 L. Ed. 846.

l4a

Appendix B

There can be no dispute as to the state of the law in 1955

when this decision was made. The state of the law has

changed since then, and Appeal of United States Securities

and Exchange Commission must be considered in terms of

the statute as it exists today. In Touhy v. Ragen, supra,

the Court upheld Department of Justice Order No. 3229

and did not require compliance with a subpoena duces

tecum. In effect the Court recognized the governmental

privilege. However, Department of Justice Order No. 3229

was issued under authority of 5 U. S. C. § 22,’ which has

been substantially amended. In Boske v. Comingore, supra,

the Court likewise affirmed the existence of a governmental

immunity by upholding a regulation adopted by the Secre-

tary of the Treasury prohibiting production of certain in-

formation. However, this regulation and this decision were

also grounded in R. 8. 161 (5 U.S. C. § 22) which has

been amended.

The statute referred to above is generally known as the

“housekeeping” statute.* The law in the Sixth Circuit, as

announced in Appeal of United States Securities and Ex-

change Commission, was consistent with the accepted inter-

pretation of that statute prior to its amendment in 1958.

In 1958 the statute was amended to add the final sentence;

“This section does not authorize withholding information

from the public or limiting availability of records to the

15 U.S.C. § 22 is presently codified as 5 U.S.C. § 301, and was

previously known as R.S. 161.

* The statute now reads as follows: § 301. Departmental regula-

tions. The head of an Executive department of military department

may prescribe regulations for the government of his department,

the conduct of his employees, the distribution and performance of

its business, and the custody, use, and preservation of its records,

papers, and property. This section does not authorize withholding

information from the public cr limiting the availability of records

to the public.

15a

Appendix B

public.” The effect of this amendment on the continued

vitality of Appeal of United States Securities and Exchange

Commission, and similar cases, is best summarized in

Cooney v. Sun Shipbuilding & Drydock Company, 288 F.

Supp. 708, 713 (E. D. Pa., 1968).

In support of this position, the brief cites several

cases in which courts are purported to have upheld the

right of various government agencies to withhold the

production of documents from their files on the basis

of regulations similar to those of the Department of

Labor’s former regulations. |citing Boske v. Coming-

ore, Appeal of U. S. Securities and Exchange Commis-

sion, and Touhy v. Ragen in a footnote] But I find

most of the cases cited by the government to be of

limited relevance to the issues here presented for

several reasons.

+ - + _ *

Second, many of the cases on executive privilege

were decided on the authority of the so-called “House-

keeping Statute,” 5 U. S. C. § 301, as amended, 1966

(formerly 5 U.S. C. § 2). That statute authorizes the

heads of agencies to prescribe regulations for the “cus-

tody, use and preservation of its records, papers and

property.” Of itself the statute does not authorize the

withholding of departmental files. But for many years,

government agencies, with the acquiescence of the

courts, consistently cited the statute as the basis for

regulations prohibiting subordinate officials from mak-

ing records available to members of the public or for

use in litigation except upon permission of the secre-

tary or agency head. However, any former presump-

tions as to the authority of that statute to justify the

withholding of records was effectively laid to rest by

the 1958 amendment to that statute, which provided:

“This section does not authorize withholding

information from the public or limiting the avail-

ability of records to the public.”

l6a

Appendix B

Those cases cited by the government which were de-

cided after the enactment of that amendment and

upheld government claims of privilege on the author-

ity of that statute, so held by merely citing the earlier

precedents without considering the effect of the amend-

ment on the continuing vitality of these cases. Later

cases have clearly established a trend by courts away

from merely ratifying the policy reasons asserted by

the governmental agencies to support a claim of privi-

lege, and have demonstrated instead a greater willing-

ness on their parts to attempt the sometimes difficult

task of reconciling agency policies against disclosure

with the legitimate demands of proper judicial admin-

istration, to the end that courts may have all available

information for the determination of controversies,

and the agencies not be frustrated in the effective per-

formance of their delegated responsibilities.

While the head of a governmental agency may still regu-

late an employee’s handling of information, such informa-

tion must be produced when demand is made upon the head

of the department. Section 301 regulates the internal affairs

of a department, but no longer reduces the availability of

information to the public.

Accordingly, the plaintiff cannot claim a privilege from

production of the documents pursuant to this area of the

governmental privilege doctrine.

Ill.

Constitutional Privilege

The parameters of the executive branch’s constitutional

privilege to withhold information are not at all clear. The

state of the law as of a year ago was aptly described by

Wright and Miller in the following passage:

Finally there is the contention, with distinct consti-

tutional overtones, that by virtue of the separation of

powers in the federal government the executive has an

absolute privilege to withhold from Congress of the

courts any information that the executive branch

17a

Appendix B

deems confidential. This contention, which, so far as

the courts are concerned, goes back as far as Marbury

vy. Madison and the trial of Aaron Burr, has never

been resolved.

That such constitutional privilege is not absolute and

unqualified has recently been determined in the case of

United States v. Nixon, ... U.S. ..., 94 8. Ct. 3090, 41

L. Ed. 2d 1039, 1067 (1974). The Court stated, in 94

S. Ct., at 3106, that:

[Neither the doctrine of separation of powers, nor

the need for confidentiality of high level communica-

tions, without more, can su:.ain an absolute, unquali-

fied presidential privilege of immunity from judicial

process under all circumstances.

While this decision resolves for the first time that the gov-

ernmental constitutional privilege is not absolute, it does

not set standards by which one may determine the extent

of the privilege as it presently stands, if it exists at all. We

are thus left in the position of having no clear privilege

prohibiting discovery in the present situation, and we

must resort to the traditional weighing and balancing of

interests. IV.

Weighing and Balancing

The interests in conflict are quite clear. On the plain-

tiff’s side is the government’s interest in preserving the

privacy of its internal consultative and deliberative pro-

cesses, thereby encouraging “open, frank discussion be-

tween subordinate and chief concerning administrative

action.” * Of the utmost importance here is the desire for

administrative personnel to reduce their mental processes

to writing, for in so doing they can increase their depart-

ment’s information recall capacity, and can better preserve

% Kaiser Aluminum & Chemical Corp. v. United States, 157

F. Supp. 939, 946 (Ct. Cl. 1953), Mr. Justice Reed sitting by

designation.

18a

Appendix B

an accurate account of a situation for future personnel that

may come into contact with a particular case or file. The

awareness that a particular writing may be released to an

adversary attorney at some point in the future may well

inhibit the government employee from reducing his

thoughts to writing.

On the defendant’s side is the overall thrust and policy

of the Federal Rules toward complete and exhaustive dis-

covery, thereby insuring that the resolution of litigated

issues is based on all of the relevant evidence. Part of the

rationale here is that to deprive a litigant of information

that he deems essential to his cause, when such information

is in the possession of the adverse litigant, is to in effect

deprive him of his day in court.

From the discussion of the area of governmental privi-

lege it is clear that none of the accepted privileges are

applicable here. The government-plaintiff must therefore

be accorded the same privileges and obligations as any other

litigant.‘ United States v. Procter & Gamble Company

[1958 TRADE CASEs {| 69,046], 356 U. S. 677, 681, 78 S. Ct.

983, 986, 2 L. Ed. 2d 1077 (1958) ; Timken Roller Bearing

Company v. United States, 38 F. R. D. 57, 65 (N. D. Ohio,

1964). It is therefore the Holding of this Court that the

claim seeking a governmental privilege raised in the plain-

tiff’s motion for reconsideration is Denied, and said motion

on that issue and all other issues raised therein must be,

and hereby is, Denied.

While counsel for plaintiff had previously indicated that

the United States would not comply with the Order of this

Court, at the present time we determine only that plaintiff’s

* Reference to the reecntly enacted Federal Rules of Evidence is

grss, H. R. 5463, on January 2, 1975. Rule 501 provides a general

rule of privilege applicable to “witness, person, government, State,

or political subdivision thereof”. The standard privileges are thus

applicable to government and private citizen alike, absent special

authorization.

19a

Appendix B

motion for reconsideration should be, and is hereby, Denied.

Defendant’s motion to dismiss should be Granted, and

unless the plaintiff complies with this Court’s Order of

February 3, 1975 within five days of the date of the instant

Order, plaintiff’s complaint will, in accordance with Rule

37(b) (2) (C), Fed. R. Civ. P., be Dismissed pursuant to

the instant Order, without further Order of this Court.

It is so Ordered.

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action File No. 7976

UNITED STATES OF AMERICA

LEGGETT & PLATT, INC.

(Filed March 14, 1975)

JUDGMENT

This action came on for (hearing) before the Court,

Honorable Carl B. Rubin, United States District Judge,

presiding, and the issues having been duly (heard) and a

decision having been duly rendered,

It is Ordered and Adjudged that the Complaint is dis-

missed, pursuant to Rule 37(b) (2) (c), Federal Rules of

Civil Procedure, as outlined in the Court’s Order, entered

March 6, 1975.

Dated at Cincinnati, Ohio, this 14th day of March,

1975. JOHN D. LYTER

Clerk of Court

/s/W. Scott BROWN

Deputy Clerk

20a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil No. 7976

UNITED STATES OF AMERICA,

Plaintiff,

LEGGETT & PLATT, INC.,

Defendant.

(Filed March 24, 1975)

ORDER

Pursuant to this Court’s power under Rule 60(a), Fed.

R. Civ. P., to correct oversights or omissions in judgments

or orders, this Court does hereby issue the following Sup-

plemental Order to its March 6, 1975 Order in this case.

The attention of the Cour‘ has been directed to the pro-

visions of Rule 41(b), Fed. R. Civ. P., which might be

interpreted to hold that such Order acted as an adjudica-

tion on the merits and a dismissal with prejudice. The

March 6, 1975 Order was based upon Rule 37(b) (2) (C),

Fed. R. Civ. P. The Court does now specifically ORDER

that this case be dismissed without prejudice.

It is so ORDERED.

/s/ CARL B. RUBIN

CARL B. RUBIN

United States District Judge

2la

APPENDIX D

RULE 26 OF THE FEDERAL RULES OF CIVIL PROCEDURE

STATES IN RELEVANT PART:

(b) Scope of Discovery. Unless otherwise limited by

order of the court in accordance with these rules, the

scope of discovery is as follows:

(1) In General. Parties may obtain discovery re-

garding any matter, not privileged, which is relevant

to the subject matter involved in the pending action,

whether it relates to the claim or defense of the party

seeking discovery or to the claim or defense of any

other party, including the existence, description,

nature, custody, condition and location of any books,

documents, or other tangible things and the identity

and location of persons having knowledge of any dis-

coverable matter. It is not ground for objection that

the information sought will be inadmissible at the trial

if the information sought appears reasonably calcu-

lated to lead to the discovery of admissible evidence.

* * * ” *

(3) Trial Preparatien: Materials. Subject to the

provisions of subdivision (b) (4) of this rule, a party

may obtain discovery of documents and tangible things

otherwise discoverable under subdivision (b) (1) of

this rule and prepared in anticipation of litigation or

for trial by or for another party or by or for that

other party’s representative (including his attorney,

consultant, surety, indemnitor, insurer, or agent)

oniy upon a showing that the party seeking discovery

has substantial need of the materials in the prepara-

tion of his case and that he is unable without undue

hardship to obtain the subsiantial equivalent of the

materials by other means. In ordering discovery of

such materials when the required showing has been

made, the court shall protect against disclosure of the

mental impressions, conclusions, opinions, or legal

theories of an attorney or other representative of a

party concerning the litigation.

22a

Appendix D

(e) Supplementation of Responses. A party who

has responded to a request for discovery with a re-

sponse that was complete when made is under no duty

to supplement his response to include information

thereafter acquired, except as follows:

(3) A duty to supplement responses may be imposed

by order of the court, agreement of the parties, or at

any time prior to trial through new requests for

supplementation of prior responses.

RULE 37 OF THE FEDERAL RULES OF CIVIL PROCEDURE

STATES IN RELEVANT PART AS FOLLOWS:

(a) Motion for Order Compelling Discovery. A

party, upon reasonable notice to other parties and all

persons affected thereby, may apply for an order com-

pelling discovery as follows:

* * a a *

(2) Motion. If a deponent fails to answer a question

propounded or submitted under Rules 30 or 31, or a

corporation or other entity fails to make a designation

under Rule 30(b) (6) or 31(a), or a party fails to

answer an interrogatory submitted under Rule 33, or

if a party, in response to a request for inspection sub-

mitted under Rule 34, fails to respond that inspection

will be permitted as requested or fails to permit in-

spection as requested, the discovering party may move

for an order compelling an answer, or a designation, or

an order compelling inspection in accordance with the

request. When taking a deposition on oral examination,

the proponent of the question may complete or adjourn

the examination before he applies for an order.

If the court denies the motion in whole or in part,

it may make such protective order as it would have

been empowered to make on a motion made pursuant to

Rule 26(c).

(3) Evasive or Incomplete Answer. For purposes of

this subdivision an evasive or incomplete answer is to

be treated as a failure to answer.

a * « o *

23a

Appendix D

(b) Failure te Comply with Order.

(2) Sanctions by Court in Which Action is Pending.

If a party or an officer, director, or managing agent of

a party or a person designated under Rule 30(b) (6)

or 31(a) to testify on behalf of a party fails to obey

an order to provide or permit discovery, including an

order made under subdivision (a) of this rule or Rule

35, the court in which the action is pending may make

such orders in regard to the failure as are just, and

among others the following:

* * * 7 »

of, or staying further proceedings until the order is

obeyed, or dismissing the action or proceeding or any

part thereof, or rendering a judgment by default

against the disobedient party;

RULE 52 OF THE FEDERAL RULES OF CIVIL PROCEDURE

STATES IN RELEVANT PART AS FOLLOWS:

(a) Effect. In all actions tried upon the facts with-

out a jury or with an advisory jury, the court shall find

the facts specially and state separately its conclusions

of law thereon, and judgment shall be entered pursuant

to Rule 58; and in granting or refusing interlocutory

injunctions the court shall similarly set forth the find-

ings of fact and conclusions of law which constitute the

grounds of its action. Requests for findings are not

necessary for purposes of review. Findings of fact

shall not be set aside unless clearly erroneous, and due

regard shall be given to the opportunity of the trial

court to judge of the credibility of the witnesses. The

findings of a master, to the extent that the court adopts

them, shall be considered as the findings of the court.

If an opinion or memorandum of decision is filed, it will

be sufficient if the findings of fact and conclusions of

law appear therein. Findings of fact and conclusions

of law are unnecessary on decisions of motions under

Rules 12 or 56 or any other motion except as provided

in Rule 41(b).

24a

APPENDIX E

Excerpts from Affidavits Filed in the District Court

[Caption Omitted]

AFFIDAVIT OF ROBERT A. McNEW IN SUPPORT OF

PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

(Filed December 16, 1974)

RosBert A. MCNEw, first being duly sworn, deposes and

says that:

iad * * om *

On or about November 26, 1974, defendant’s counsel was

informed that no documents would be produced from Anti-

trust Division’s files unrelated to the instant case.

* * - — *

[Caption Omitted]

AFFIDAVIT OF MURRAY S. MONROE

(Filed February 18, 1975)

State of Ohio one

County of Hamilton | ™’

Murray S. MONROE, being first duly sworn, deposes and

says that:

a o aa ” *

(a) In a separate conversation during the week of

February 3, 1975, Mr. McNew advised him that there were

roughly eight inches of documents which the Plaintiff

refused to produce.

25a

Appendix E

[Caption Omitted |

AFFIDAVIT OF MURRAY S. MONROE

(Filed May 14, 1975)

State of Ohio _

County of Hamilton | ~°

Murray S. MONROE, being first duly sworn, deposes and

says that:

. * * * .

(3) He understands from the Plaintiff’s Memorandum

in Opposition to Defendant’s Motion to Dismiss Action for

Failure to Comply with the Court’s Order that these docu-

ments in number represent 20% of the documents ordered

to be produced, which would be approximately 1,400

documents.

(4) On March 13, 1975, at approximately 4:00 P.M., he

called John Weedon, Chief of the Cleveland Field Office

of the United States Department of Justice. He asked Mr.

Weedon as to whether the Government’s position had

changed as to the production of the documents. Mr. Weedon

stated that it had not. During the course of the conversa-

tion Mr. Weedon stated that the Plaintiff would not make

available to Defendant or counsel for Defendant the inter-

nal documents which it had previously refused to produce.

As indicated above and in a previous affidavit, Affiant is

advised and believed that there are approximately 1,400

documents which fall in this category and that they are

approximately eight (8) inches in height.

* . * * *

26a

APPENDIX F

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 76-3035

INTERNATIONAL BUSINESS MACHINES

CORPORATION,

Petitioner,

HON. DAVID N. EDELSTEIN, Chief Judge

United States District Court for the Southern

District of New York, and

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR EXTRAORDINARY WRIT TO THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

RESPONSE OF UNITED STATES OF AMERICA TO

PETITION FOR EXTRAORDINARY WRIT

BRUCE B. WILSON

Acting Assistant Attorney General,

BARRY GROSSMAN,

ROBERT B. NICKOLSON,

JOHN J. Powers, III,

JAMES F.. PONSOLDT,

Attorneys, Department of Justice,

Washington, D.C. 20530.

27a

Appendix F

7 * * a *

Chief Judge Edelstein’s opinion of June 27, 1974,'* which

was reaffirmed in his May i4, 1976 Order, recognized the

split in authority on the legal issue and adopted as the

better policy the view espoused in those cases which

limited the availability of the work product exemption to

the case for which the work product was prepared. While

the United States has taken the position that it is better

policy not to so limit the exemption,” a district court

which, in the absence of clear controlling precedent in its

circuit, relies upon one of several respectable lines of con-

flicting authority can not be said to have “abused”’ its

discretion. °

” oa * +

As Judge Carter noted in Midland Investment Co. v.

Van Alstyne, Noel & Co., 59 F.R.D. 134, 1388 (S.D.N.Y.

1973), the fact of the matter is that Rule 26(b) (3) pro-

vides little, if any, insight into the question of whether

work product may be exempted from discovery in litiga-

tion other than the one for which it was originally produced.

Similarly, the Fourth Circuit has stated that “there is, of

course, nothing in the Rule itself that suggests a specific

answer to the question before us, nor is there any indication

in the Advisory Committee Note to Rule 26(b) (3) that

the Committee gave any particular thought to this prob-

lem.” Duplan I, supra 487 F.2d at 482." As a result, while

petitioner may disagree with Chief Judge Edelstein’s view

1” Pet. App., Exhibit E, 66 F.R.D. 154.

20In United States v. Leggett &@ Platt, Inc., (No. 75-1719, 6th

Cir.). The United States has taken the position that the exemption

is not limited to the litigation for which the work product is

produced. That case is presently before the Sixth Circuit after

oral argument. A copy of the briefs filed by the United States

in that case are attached as Resp. App., Exhibits G and H.

3* See also, 8 Wright & Miller, Federal Practice and Procedure,

§ 2024, at p. 201.

28a

Appendix F

of the law on policy grounds, it may not be stated that the

Judge’s decision is inconsistent with the language of Rule

26(b) (3) or the clear intent of its drafters.

Respectfully submitted,

BRUCE B. WILSON

Acting Assistant Attorney General,

Antitrust Division

BARRY GROSSMAN,

ROBERT B. NICKOLSON,

JOHN J. POWERS, III,

JAMES F.. PONSOLDT,

Attorneys, Department of Justice,

Washington, D.C. 20530.

July 2, 1976

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