commerce and the instant case is a suit or proceeding under that law. I therefore find that this Court has jurisdiction regardless of the citizenship of the parties and the amount involved.
2. Unquestionably Rule 34 of the Federal Rules of Civil Procedure has extended the rights of parties to a suit to examine the books and records of the other party before trial. It was aptly phrased by Judge Maris in C.F. Simonin's Sons, Inc. v. American Can Co., D.C., 24 F.Supp. 765: "An examination of these rules discloses that they afford the plaintiff facilities for discovery from the defendant which are more liberal than it could obtain in a suit in equity for discovery. Furthermore it is clear that those rules may be invoked in aid of a civil action at any time after its commencement."
With what standard must the movent comply to gain the right to examine his adversary's books and records?
This question has been considered by Judge Kirkpatrick of this District in the case of C.F. Simonin's Sons, Inc. v. American Can Company, D.C., 30 F.Supp. 901. He promulgates the following standard, 30 F.Supp. at page 902: "Searching for guidance in reported decisions under the old practice, and avoiding 'restrictive formulas,' the only general rule having 'the capacity of flexible adjustment to changing groups of facts' which I can discover is that a plaintiff, before he is granted sweeping discovery, must somehow convince the Court that there is, at least, reasonable ground to believe that a cause of action exists, and can be proved if the necessary facilities are afforded him."
In the instant case I am convinced there is "reasonable ground to believe that a cause of action exists" and the plaintiff should be afforded the privilege of examining the defendant's books and records.
3. This right to examine books and records of the opposing party should be limited, however, to an examination of the material records pertaining solely to the parties bringing this suit.
In the case of Apex Hosiery Company v. Leader et al., D.C., Judge Kirkpatrick of this District granted the motion of the plaintiff for discovery and production of documents according to Rule 34 and entered an order appointing a master to supervise and conduct plaintiff's inspection, copying and photographing of the documents so that the plaintiff was enabled to inspect, copy and photograph any of the documents which in any way related or pertained to that action between the plaintiff and defendant, but ordered that all other matters and information contained in the documents should be withheld from the plaintiff's examination and inspection. The Circuit Court of Appeals, 3 Cir., 102 F.2d 702, 703, dismissed the appeal for want of jurisdiction, but added this approving language: "* * * we think it may fairly be said that the order entered by the learned District Judge was most carefully drawn to prevent the plaintiff from unduly prying into the defendants' affairs."
4. The examination of the books, accounts and records for the purposes and with the limitations above stated does not violate the employer's constitutional right against self-crimination guaranteed to him by the 5th Amendment to the Constitution. This Amendment refers to criminal cases or actions civil in form but criminal in nature and which have been "instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him." Boyd v. United States, 116 U.S. 616, 634, 6 S. Ct. 524, 534, 29 L. Ed. 746. In that case the Supreme Court prohibited "the seizure of a man's private books and papers to be used in evidence against him" because the act provided for penalties and forfeiture of the party's goods. The instant case is a civil action not of a criminal nature, and is not for the enforcement of any penalty or forfeiture. Counsel for the defendant in his Brief, arguing the jurisdictional question, concedes that "liquidated damages" as used in Section 16(b) of the Fair Labor Standards Act of 1938 are not "penalties". The sheltering guaranty against self-crimination enjoyed by reason of the 5th Amendment can have no application in the instant civil suit. Fithian v. Centanni, 159 La. 831, 106 So. 321; Wilkinson v. Harberson, La.App., 145 So. 28, 30.
I shall follow the procedure adopted by Judge Kirkpatrick in the Apex Hosiery Company case, supra. If counsel for the plaintiff will prepare an order in accordance with this opinion pertaining to the relevant records concerning Edith Marie DeFelice, Phyllis Araco, Edythe D'Alonzo, Jeannette Paolini, Antoinette Paolone, Antoinette DiEnna, Dorothy Zink and Amelia Weihrauch, and submit it to defendant's counsel for a period of five days before presentation, a master will be appointed and the order entered.