Opposition — Automobile Club v. Bell

IN THE

Supreme Cot of the United

No. 78-1542

AUTOMOBILE CLUB OF MICHIGAN, DETROIT AUTOMOBILE

INTERINSURANCE EXCHANGE, MoToOR LAND INSURANCE

AND GROUP INSURANCE COMPANY OF MICHIGAN,

‘n Petitioners

DorROoTHY J. BELL, SHIRLEY J. SIMS, KATEY WEATHER-

SPOON, MARTHA COWAN, ANITA PRYSOCK, LILLIE YAR-

BOROUGH, DAVID ADAMS, CHARLES HALL, DWIGHT T.

SMITH, JOHNNIE GREEN, JAMES CASTELLE AND HENRY

SWIFT, individually and on behalf of all persons simi-

larly situated,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DAVID R. CASHDAN

Suite 402

1300 19th Street, N.W.

Washington, D.C. 20036

(202) 466-4816

ERNEST GOODMAN, ESQUIRE

MARIJANA RELICH, ESQUIRE

GOODMAN, EDEN, MILLENDER &

BEDROSIAN

3200 Cadillac Tower

Detroit Michigan 48226

(313) 965-0050

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

Page

I is nual aedapibivtanasnends 1

i. LEAT ESSE AAT OT RR AO TE ED 2

I chai acdsennslcsisismpcomacsecinientionnaaisbconeeensine 2

Statutes and rules involved ...o.............0..eceeeceeeeeeeeeeceeeee es 3

I sd ces bntaesseeconmen 3

Reasons for opposing the writ _.200......0000...-2eccceeeeeeeeeeeene- 7

a alien 14

Appendix:

Rules 26(b)(1) and 26(c) of Federal Rules of

ail castes la-2a

Il

Authorities Cited

Cases:

American Express Warehouseman Ltd. v. Trans-

American Insurance Co., 380 F.2d 277 (2d Cir.

TRIER ciccinai cathe cerededacehincatastasetcnctacndaiaeaiiegtaangeiebbiaiins

Arthur Anderson Co. V. Finesilver I, 546 F.2d 338

(10th Cir. 1977), cert. den. 429 U.S. 1096 _........

Belcher v. Bassett Furniture Industries, Inc., 588

F.2d 904 (4th Cir. 1978) 2.22.20...

Borden v. Sylk, 410 F.2d 842 (8rd Cir. 1969) _.......

Burns v. Thiokol Chemical Corporation, 483 F.2d

SR Ce Bs TOR aiedes es decanccdetditesndaaie sco pieinctieckainiinine

Carr v. Monroe Mfg., 431 F.2d 304, 386-87 (1970)

cert. den. sub. nom., Aldridge v. Carr, 400 U.S.

RE Ce sented ait.

Cobbledick v. U.S., 309 US 323 (1940) ..................

Cohen Vv. Beneficial Industrial Loan Corporation,

Se Te RE TD aikeescdeeckt

Dow Chemical v. Taylor, 519 F.2d 352, 354 (6th

Cir. 1975) cert. den. 423 US 1088 ~...00002022 2.

Eisen Vv. Carlisle & Jacqueline, 417 US 155 (1974)...

Flores v. Local 25, IBEW, ——- FRD ——, 14

FEP Cases 494 (E.D.N.Y. 1976) _...200022 oo.

‘ Grinnell Corp. v. Hackett, 519 F.2d 595 (1st Cir.

1969), cert. den. 423 U.S. 10383 (1975) —......2.....

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

- BN | iia mene ce nO

Lawyers v. North Carolina Board of Examiners,

588 F.2d 547 (4th Cir. 1976) 2...

Morales v. Truman, 59 FRD 157 (E.D. Tx. 1972)..

Parents Committee of Public School 19 v. Com-

munity School Board, 524 F.2d 11388 (2d Cir.

NETS RP ae nea ONS y Lene TO

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ........

Sladen v. Girltown, Inc. 425 F.2d 24 (7th Cir.

SESE GED RI ADS MARS So ee a” ON IER

Xerox Corp. v. SCM Corp., 534 F.2d 1031 (2nd

I acd actshccintihscas caennds ea tanbancbemalsnaamneee

Page

11, 12

13

10, 11

9,10

12, 13

III

Authorities Cited—Continued

Statutes:

Rules:

Page

en 2,3

a 3, 10,11

Me Nas PUD concoeccccececcenecnn---.--..-.. 2,10,11

RE 6 AR £ | ) See eae 2

I 2, 3,9

ge 2 ok 1 A a ee 3

42 U.S.C. § 2000e-e¢ seq. once ccccccceceeceeceeceeee 3

Federal Rules of Civil Procedure

Rit 3

8 aE CSS a 3,12

ECON 2 NEE et or ee 3,13

hl 3, 11, 12, 13

eR Nate Set <1 2 12

IN THE

Supreme Court of the United States

No. 78-1542

AUTOMOBILE CLUB OF MICHIGAN, DETROIT AUTOMOBILE

INTERINSURANCE EXCHANGE, MOTOR LAND INSURANCE

AND GROUP INSURANCE COMPANY OF MICHIGAN,

Petitioners

vs.

DoROTHY J. BELL, SHIRLEY J. Sims, KATEY WEATHER-

SPOON, MARTHA COWAN, ANITA PRYSOCK, LILLIE YAR-

BOROUGH, DAVID ADAMS, CHARLES HALL, DWIGHT T.

SMITH, JOHNNIE GREEN, JAMES CASTELLE AND HENRY

SWIFT, individually and on behalf of all persons simi-

larly situated,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR SIXTH CIRCUIT

OPINIONS BELOW

On August 10, 1978, the District Court of the Eastern

District of Michigan entered an order granting respond-

2

ents’ discovery request for petitioners to answer inter-

rogatories or permit access to the petitioning employers’

premises for purposes of administering a professionally

developed questionnaire to petitioners’ employees. The

verbal findings of the District Court were announced at

the hearing and thereafter an order was entered. The

order of the District Court is reported unofficially at 18

FEP Cases 970.'

The Court of Appeals for the Sixth Circuit by order

dated March 12, 1979, dismissed the petitioners’ appeal

as an interlocutory discovery order, observed that peti-

tioners could avoid any potential harm by refusing to

obey the order and seeking review after sanctions are

applied, and refused to issue the requested writ of

mandamus since petitioners had failed to show the exist-

ence of exceptional circumstances. Both the District

Court’s and the Court of Appeal’s orders are reprinted

in the appendix to the petition at pp la-3a and 4a-5a.?

JURISDICTION

The petitioner’s invoke this Court’s jurisdiction under

28 U.S.C. §1254(1) or alternatively under 28 U.S.C.

§ 1651 (a).

QUESTIONS PRESENTED

1. Did the Court of Appeals for the Sixth Circuit act

properly in dismissing the petitioners’ extraordinary

method for seeking review of a discovery order, particu-

larly when the ordered discovery is still subject to further

1The District Court on January 9, 1979, refused to certify its

order under 28 U.S.C. § 1292(b) or to stay the taking of the survey

pending appeal.

* The Court of Appeals denied petitioners’ request for a stay

pending appeal. Thereafter the District Court denied the petition-

ers’ request for a stay pending the resolution of the instant petition

as did Justice Stewart on April 10, 1979.

3

modifications by the District Court and when the at-

tempted appeal predates the imposition of sanctions by

the Court.

2. Whether the District Court acted within its auth-

ority in ordering an on-premises employee survey.

STATUTES AND RULES INVOLVED

The statutes involved are §§ 28 U.S.C. 1254(1), 1291,

and 1651. The Federal Rules involved are Rules 26b(1),

26(c), 33 and 34 of the Federal Rules of Civil Pro-

cedure. The pertinent text of these statutory provisions

and rules are contained in the Appendix at pp la-2a.

See also petition appendix pp 6a-9a.

STATEMENT OF THE CASE

This case involves a certified class action under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

et seq. as amended and Section One of the Civil Rights

Act of 1966, as amended, 28 U.S.C. § 1981. The com-

plaint as amended alleges that petitioner (“AAA”) has

engaged in and is engaging in a broad pattern of racial

discrimination in violation of Title VII and § 1981.

Among other things, the complaint alleges that the move

of AAA’s corporate headquarters from downtown De-

troit to a suburban location in Dearborn, Michigan,

would have an unlawful discriminatory impact upon

blacks.’

The continuing adverse impacts alleged in the com-

plaint include, inter alia, the following:

3 Petitioners announced to their employees the decision to relocate

their headquarters employing approximately 1,200 persons to the

Dearborn site, on or about February 1, 1971. The relocation oc-

curred in April and May of 1974.

4

1) Blacks would not be able to continue their em-

ployment with AAA at the new location to the

same extent as white employees.

2) The relocation would impose greater travel or

other economic burdens upon black employees

than white employees.

3) The new location would place potential black em-

ployees at a competitive disadvantage to potential

white employees. ;

In order to flush out the extent of these differing alleged

impacts, respondents under the supervision of John Kain,

Chairman of the Department of City and Regional Plan-

ning, Harvard University, Cambridge, Massachusetts,

and Susan Smock, Professor of Urban Planning and Co-

administrator of Research, Wayne State University,

Wayne State Center for Urban Studies, Detroit, Michi-

gan developed an employee questionnaire. As detailed in

the materials considered by the District Court, the sur-

vey (questionnaire) requires written answers, seeks ob-

jective rather than attitudinal responses and does not

entail employee interviews.*

The employee information requested in the survey falls

generally into the following categories:

1) data pertaining to employee transportation—

primarily the employee’s mode(s) of travel to

and from work, and verification of addresses in-

formation; and

2) data pertaining to the employee household.

As reflected in the record, a major reason for the trans-

portation information requested in the survey is to enable

respondents to identify the differing effects of the reloca-

tion by ascribing appropriate employee travel times and

changes in those times or to identify differing cost im-

* The survey appears as an attachment to the petition pp. 10a-1la.

5

pacts associated with the relocation such as the necessity

for employee class members previously dependent upon

public bus transportation to purchase cars. The house-

hold and background information is requested to enable

respondents’ experts to describe and address through

appropriate multi-variate analysis the extent to which

the alleged adverse transportation burdens imposed on

class-members may be attributed to AAA’s relocation.°

After considering briefs, oral arguments, affidavits of

respondents’ experts and management representatives of

petitioners and hearing trial testimony of petitioners’

experts, the F‘istrict Court announced its findings and

thereafter entered an order. The District Court’s order

included in pertinent part the following findings and pro-

cedures:

1. The information sought by plaintiffs may be rele-

vant to the relocation issue in this case. The

Court finds the survey procedures requested by

plaintiffs to be the most reasonable method of

proceeding to gather this information and to be

preferable to the burdens associated with an

effort of trying to literally and individually in-

terrogate each person under oath by deposition.

* * * *

2. Defendants shall arrange to have employees pres-

ent at a reasonable time during their working

hours for the purposes of responding to the sur-

vey and shall without cost to plaintiffs make an

appropriate room available on their premises for

the conducting of said survey.

5 The materials and briefs considered by the Court also reflect that

there exists no satisfactory alternative documentary base of AAA’s

from which the information requested in the survey can be con-

structed.

6

7. There is to be an introduction to the survey which

will read as follows:

This survey is being administered at the request

of the United States District Court for the pur-

poses of helping the Court understand more about

the employees of the Automobile Club. No one is

being ordered to answer any of the questions in

the survey; each of you is free to refuse to take

part. However, for your information, if you do

not choose to take part in this survey, it is pos-

sible that in the future you may be ordered by

the Court to present yourself for a more formal-

ized and detailed questioning session. It is the

opinion of the Court that by filling out this sur-

vey, you will be doing your part in aiding the

Court’s search for the truth at a minimum of in-

convenience to yourself.

Under other provisions of the order respondents are re-

quired to reimburse petitioners for the time spent by

employees in connection with the survey, petitioners may

add questions to the survey, and petitioners are not

barred from conducting their own survey. In addition,

the District Court indicated that it would entertain fur-

thtr protective orders.

Thereafter, the Court of Appeals dismissed as inter-

locutory the petitioners’ appeal and request for a writ of

mandamus.

The District Court is currently considering requests by

counsel concerning procedures and protective conditions

for the survey including inter alia modifications in the

notices to the employees and the confidentiality of survey

responses. As indicated by affidavits of petitioners’

management, the survey can not be conducted of the

1,200 plus employees en masse, but instead will occur in

its training room which can only accommodate a group

of 50-60 employees at any one time.

7

REASONS FOR OPPOSING THE WRIT

THE PETITION SEEKS REVIEW OF AN INTER-

LOCUTORY DISCOVERY ORDER AND DOES NOT

CONCERN AN APPLICATION OF THE FEDERAL

RULES OF CIVIL PROCEDURE WHICH WARRANTS

REVIEW

This Court should deny the instant petition in keeping

with its regular practice of rejecting petitions for

certiorari review of interlocutory orders. Cobbledick v.

United States, 309 U.S. 328, 325-325 (1940), Hamilton-

Brown Shoe Co. v. Wolf Bros & Co., 240 U.S. 251, 258

(1916). Like virtually every other discovery order, the

District Court’s discovery order permitting respondents

to conduct an employee survey (questionnaire), consti-

tutes merely a step toward full disposition on the merits,

and as such, can not even under a “practical construc-

tion” of finality fit within that small category of orders

permitted interlocutory review under the “collateral order

doctrine.” Cohen v. Beneficial Industrial Loan Corpora-

tion, 387 U.S. 541 (1949) and Eisen v. Carlisle & Jac-

queline, 417 U.S. 155 (1974).

The District Court’s order does not even meet the first

of this Court’s requirement for appealability. As ex-

plained in the Hisen, supra at 417 U.S. at 171:

This Court held the order [in the Cohen case] ap-

pealable on two grounds. First, the District Court’s

finding was “tentative, informal or incomplete.”

Here, various procedures, relative burdens, and terms

with regard to the use of the data are not yet resolved

and as such petitioner’s contended potential harms are

not defined. This is particularly true in regard to mat-

ters relating to the confidentiality of employee responses.*

* Manifestly, petitioner’s alleged concern for the privacy interests

of its employees, in addition to being specious since employees are

not even compelled to answer the questionnaire, is clearly premature.

8

The need for clarity, and definition of the consequences

of ordered discovery, however, is an elementary theme in

the long line of cases pre-conditioning appellate review of

discovery orders upon the prior imposition of sanctions.

Dow Chemical v. Taylor, 519 F.2d 352, 354 (6th Cir.

1975), cert. den. 423 U.S. 1033; Grinnell Corp. v. Hack-

ett, 519 F.2d 595 (1st Cir. 1969), cert. den. 423 U.S.

1033 (1975); Arthur Anderson Co. v. Finesilver I, 546

F.2d 338 (10th Cir. 1977) cert. den. 429 U.S. 1096;

Xerox Corp. v. SCM Corp., 534 F.2d 1031 (2nd Cir.

1976) ; American Express Warehouseman Ltd. v. Trans

American Ins. Co., 380 F.2d 277 (2nd Cir. 1967) ; Borden

v. Sylk, 410 F.2d 8438-845 (8rd Cir. 1969); Lawyers v.

North Carolina Board of Examiners, 588 F.2d 547 (4th

Cir. 1976). Any other result encourages the undesirable

and “debilitating effects on judicial administration caused

by piecemeal” review. Hisen, supra at 171.

Nor can review of the District Court’s survey order be

considered “a final disposition of a claimed right which

is not an ingredient of the cause of action and does not

require consideration with it.” Cohen, supra at 546-547.

The District Court’s survey order was not entered in a

vacuum; instead, the order represents the by-product of

the District Court’s assessment of the data requested in

the survey, in terms of both its relative importance to

plaintiff’s case, and of the relative burdens associated

with obtaining that information. A review of the verbal

rulings of the District Court at the hearing on August

10, 1978 would leave little question that in ordering the

survey the District Court considered the cogency of the

requested information to the underlying cause of action

as well as the burdens and inconveniences associated with

the survey as well as those presented by alternative forms

of discovery.’

7 For example: At Tr. 77 Judge Joiner noted that under the Dis-

covery Rules, “Rules 26-37”, he was to “look at whether the particu-

—S= oa

9

Admittedly, this Court by way of mandamus review

under 28 U.S.C. § 1651, has indicated a willingness in

extraordinary circumstances to formulate the necessary

guidelines for the construction and application of the

Federal Rules of Civil Procedure. Schlagenhauf v. Holder,

379 U.S. 104 (1964). The occasions for doing so how-

ever have been few and far between. The precedent

significance of the District Court’s order permitting an

on-premises survey which does not even compel any em-

ployee to answer any of the questions but urges coopera-

tion in the interest of justice is readily distinguishable

from the judicial administration and discovery implica-

tions of an order such as that at issue in the Schlagen-

hauf, supra, where there existed serious “untoward re-

sults” if this Court did not formulate the limits for per-

mitting physical and mental examinations of a defendant

party.

Thus, Justice Goldberg explained at p. 122: “To hold

otherwise would mean that such examinations could be

ordered routinely in automobile cases” and in f.n. 18 he

even highlighted the magnitude of the problem by citing

lar information is relevant to the subsequent [subject] matter in-

volved in the pending action.” In addition at Tr. 78, he explained

So I think the judgment of the Court should be directed at the

question of what is proposed here. Seems to be a reasonable

and even perhaps, the most reasonable method of proceeding in

an effort to gather information that will provide a basis for

conclusions for the assistance of the fact finder.

I think the record shows that such a survey would be helpful in

a case of this kind . . . that it would probably be the best way

to proceed in an effort to gather information of value to the

ultimate fact finders in the case.

* we * 4

It seems to me that it’s preferable to an effort to try to literally

and individually interrogate each person under oath by deposi-

tion or on the stand.

Consider also the District Court’s parenthetical observation in

response to questions of petitioners’ counsel. “. . . I want to talk to

these employees about the transportation problem .. .”.

10

statistics reflecting the massive incidence of automobile

accidents and related negligence litigation. 329 U.S. 121-

122. The incidence of on-premises survey orders similar

to those required in this case by the District Court can

not realistically be expected to occur in appreciable num-

bers particularly when the ground rules of the survey

require the respondent employee class representatives to

reimburse the petitioner for the wages of the employees

for the time spent in assembling and responding to the

questionnaire.

A. The Decision of the Court of Appeals for the Sixth

Circuit is Not in Conflict With the Decision of the

Court of Appeals for the Second Circuit

Without reference to any of the long lines of cases

which require the imposition of sanctions before permit-

ting interlocutory review of discovery matters under 28

U.S.C. § 1291, supra p. 6, petitioners assert that the

Court of Appeals decision for the Sixth Circuit in this

case is in direct conflict with the decision of the Second

Circuit in Parents Committee of Public School 19 v. Com-

munity School Board, 524 F.2d 1138 (2d Cir. 1975) and

further erroneously represent that the decision holds that

a discovery order which compelled a party to follow a pro-

cedure not authorized by the Rules is appealable under

28 U.S.C. § 1291 as a “collateral order’. In point of fact,

Parents Committee, supra, does not present a conflict.

The majority opinion in that case, recognized that the

lower court’s order requiring the testing of school chil-

dren mandatorily imposed relief sought by the plaintiffs

in their complaint, as such assumed the character of a

mandatory injunction, and would be reviewable under 28

U.S.C. § 1292(a)(1) after remand for the purpose of

taking further evidence and entering of appropriate find-

ings of facts and conclusions of law. 524 F.2d at 1141-

1142. Although the concurring opinion in Parents Com-

mittee, supra, supports appellate review under § 1291, the

11

concurring opinion specifically recognizes that the major-

ity opinion based appellate jurisdiction on 28 U.S.C.

§ 1292(a) (1) and not on § 1291.8 524 F.2d at 1148.

B. The Decision of the Court of Appeals for Sixth Cir-

cuit is Not in Conflict With Decisions of the Fourth

and Seventh Circuits

Contrary to the petitioner’s contention, the recent deci-

sion in Belcher v. Bassett Furniture Industries, Inc., 588

F.2d 904 (4th Cir. 1978) does not establish as a princi-

ple of law that an on-premises survey or questioning of

employees is not authorized under Rule 34 of the Fed-

eral Rules of Civil Procedure. The Belcher decision dis-

allowed the taking of an on-premises inspection and ques-

tioning of employees due to what the Fourth Circuit

considered was an improvidently granted order, lacking

both precision and care in the formulation of appropri-

ate protective conditions. Belcher, supra, p. 911. There-

fore, the Fourth Circuit held that the district court had

not provided the employer with adequate protection and

remanded the case for further consideration by the dis-

trict court. In short, the Belcher decision does not create

a conflict in the Circuits, is limited to the circumstances

of that case and the conclusion that there had not been

an adequate balancing by the district court of the rele-

vancy and need for the information sought against the

burdens associated with the survey in that case.

Unlike the claim asserted by the employer in Belcher,

supra, p. 907, the administration of respondents’ written

8 Since the granting of respondent’s request for a survey is not

encomp*ssed within the injunctive relief sought in the complaint

to correct the alleged unlawful racial discrimination, petitioners

were not able to frame their request for appellate review to the

Court of Appeals for the Sixth Circuit upon the statutory alterna-

tive provided under 28 U.S.C. § 1292(a)(1). See Carr v. Monroe

Mfg., 431 F.2d 304, 386-87 (1970) cert. den. sub nom., Aldridge v.

Carr, 400 U.S. 1000 (1971).

12

questionnaire does not present the safety hazards of an

unstructured on-site inspection and the at-random, un-

structured personnel interrogation of employees while

working on a complicated factory assembly line by a

roaming entourage free to ask questions not previously

approved by the District Court. By contrast, the ordered

survey consists of a professionally developed written ques-

tionnaire approved by the District Court after having

fully evaluated the competing needs of the respondents

and the alleged burdens of the petitioners. In addition

the District Court’s order is formulated with precision

and further indicates that additional protective condi-

tions may be needed. Finally, review of the record would

demonstrate that petitioners are in no position to make

the claims permitted the employer in Belcher, supra,

under Rule 26(c) against “annoyance, embarassment,

oppression or undue expense.” ® |

Sladen v. Girltown, Inc., 425 F.2d 24 (7th Cir. 1970)

relied upon by petitioners, also is not in conflict with the

order of the Sixth Circuit in this case. While the Seventh

Circuit in the Sladen case held Rule 35 Federal Rules of

Civil Procedure and not Rule 34 gives a district court

authority to order physical examinations, it also spe-

cifically ruled that under Rule 34 a district court has the

authority to require production on a showing of good

® Review of the record would reflect that petitioners have them-

selves conducted similar surveys of all employees at their adminis-

trative headquarters prior to the relocation to collect employee

transportation information. Similarly, petitioners until recently

have requested of applicants for employment household information

similar to that requested in the survey. These surveys and/or mate-

rials and their limited value to respondents were discussed in full in

either briefs or affidavits submitted to the District Court.

Although not yet approved by the District Court, the actual pro-

cedure for surveying employees will undoubtedly minimize the con-

tended disruption of the respondent insurance companies’ opera-

tions with employees being scheduled for questioning in their

training room described in affidavits submitted to the District Court

by representatives of the petitioners’ personnel office.

13

cause to permit the moving party to conduct tests. Sladen,

supra, p. 25. Here, the District Court has not forced the

opposing party to conduct tests; instead it has required

the production and assembly of employees to permit them

the option of answering written questions and leaves to

the moving party, the respondent, the actual administra-

tion of the questionnaire.

C. The District Court Acted Within Its Authority Under

The Federal Rules of Civil Procedure

This Court should also not review the order requiring

the survey at this time since the District Court acted

within its authority. Respondents request was framed as

interrogatories under Rule 38 or alternatively under Rule

34 for access to the premises. The case law under Rule

33 indicates that defendants in civil rights litigation

under Title VII of the Civil Rights Act of 1964 have

been required to conduct surveys to obtain or gather

basic information about the work force requested by

plaintiffs. See e.g., Flores v. Local 25, IBEW, 14 FEP

Cases 494 (E.D.N.Y. 1976). CF: Burns v. Thiokol

Chemical Corporation, 483 F.2d 300 (5th Cir. 1973).

Similarly, under Rule 34 on-premises surveys have been

ordered which allowed experts to enter and live in a

prison and conduct examinations of prison staff and in-

mates in litigation involving important civil rights.

Morales v. Truman, 59 FRD 157 (E.D. Tx. 1972). In

sum, closer examination of the relevant case law and

guidelines under the Federal Rules of Civil Procedure

will sustain the authority of the District Court in the

circumstances of this case in ordering the respondents to

make their premises and employees available so that peti-

tioners might administer to the willing employees the

desired survey.

14

CONCLUSION

For the reasons stated above, the petitioned for writs

should be denied.

DAVID R. CASHDAN

Suite 402

1300 19th Street, N.W.

Washington, D.C. 20036

(202) 466-4816

ERNEST GOODMAN, ESQUIRE

MARIJANA RELICH, ESQUIRE

GOODMAN, EDEN, MILLENDER &

BEDROSIAN

8200 Cadillac Tower

Detroit, Michigan 48226

(313) 965-0050

la

APPENDIX

Federal Rules of Civil Procedure

Rule 26

DEPOSITIONS AND DISCOVERY

(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 regard-

ing 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 dis-

covery or to the claim or defense of any other party,

including the existence, description, nature, custody, con-

dition and location of any books, documents, or other

tangible things and the identity and location of persons

having knowledge of any discoverable matter. It is not

ground for objection that the information sought will be

inadmissible at the trial if the information sought ap-

pears reasonably calculated to lead to the discovery of

admissible evidence.

* * * *

(c) Protective Orders. Upon motion by a party or by

the person from whom discovery is sought, and for good

cause shown, the court in which the action is pending or

alternatively, on matters relating to a deposition, the

court in the district where the deposition is to be taken

may make any order which justice requires to protect a

party or person from annoyance, embarrassment, oppres-

sion, or undue burden or expense, including one or more

of the following: (1) that the discovery not be had; (2)

that the discovery may be had only on specified terms

and conditions, including a designation of the time or

place; (3) that the discovery may be had only by a

method of discovery other than that selected by the party

2a

seeking discovery; (4) that certain matters not be in-

quired into, or that the scope of the discovery be limited

to certain matters; (5) that discovery by conducted with

no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only

by order of the court; (7) that a trade secret or other

confidential research, development, or commercial infor-

mation not be disclosed or be disclosed only in a desig-

nated way; (8) that the parties simultaneously file speci-

fied documents or information enclosed in sealed envelopes

to be opened as directed by the court.

If the motion for a protective order is denied in whole

or in part, the court may, on such terms and conditions

as are just, order that any party or person provide or

permit discovery. The provisions of Rule 37(a) (4) ap-

ply to the award of expenses incurred in relation to the

motion.

Statutes

28 U.S.C. § 1651. Writs

(a) The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or appro-

priate in aid of their respective jurisdictions and agree-

able to the usages and principles of law.

(b) Any alternative writ or rule nisi may be issued

by a justice or judge of a court which has jurisdiction.

June 25, 1948, c. 646, 62 Stat. 944; May 24, 1949, c. 139,

§ 90, 63 Stat. 102.

28 U.S.C. § 1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of ap-

peals from all final decisions of the district courts of the

United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, except where

a direct review may be had in the Supreme Court. June

8a

25, 1948, c. 646, 62 Stat. 929; October 31, 1951, c. 655,

§ 48, 65 Stat. 726; July 1, 1958, Pub. L. 85-508, § 12(e),

72 Stat. 348.

28 U.S.C. § 1254. Courts of appeals; certiorari; appeal;

certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;

(2) By appeal by a party relying on a State statute

held by a court of appeals to be invalid as repugnant to

the Constitution, treaties or laws of the United States,

but such appeal shall preclude review by writ of cer-

tiorari at the instance of such appellant, and the review

on appeal shall be restricted to the Federal questions

presented ;

(3) By certification at any time by a court of appeals

of any question of law in any civil or criminal case as

to which instructions are desired, and upon such certifi-

cation the Supreme Court may give binding instructions

or require the entire record to be sent up for decision of

the entire matter in controversy. June 25, 1948, c. 646,

62 Stat. 928.