The opinion of the court was delivered by: HERMAN
The petitioner, Bernard Samoff, Regional Director of the Fourth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board (hereinafter Board), seeks a preliminary injunction pursuant to Section 10(1) of the National Labor Relations Act, as amended by 73 Stat. 544 (1959), 29 U.S.C. § 160(1). Petitioner alleges that charges levied against respondents are pending before the Board claiming that the respondents have engaged in, and are engaging in acts and conduct in violation of § 8(b)(4)(i) and (ii), subparagraph (B) of the National Labor Relations Act, and that petitioner has reasonable cause to believe that the said charges are true.
It appears from the record that on October 22, 1969 and on the subsequent dates of December 8, 1969 and March 16, 1970, Sardec, Inc., filed charges with the Board alleging that the respondents have engaged in and are engaging in unfair labor practices within the meaning of § 8(b)(4)(i) and (ii), subparagraph (B) of the act. The applicable portions of said act read as follows:
"(b) It shall be an unfair labor practice for a labor organization or its agents . . . . (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (B) forcing or requiring any person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing business with any other person; . . ."
The petition seeking injunctive relief, was filed in this court on April 9, 1970 and the court ordered that a hearing be held on April 24, 1970.
On April 17, 1970 respondents filed a notice of taking of depositions of petitioner Bernard Samoff, pursuant to Rule 26 of the Federal Rules of Civil Procedure. The notice set April 21, 1970 as the date for the taking of depositions and in addition provided, "You are hereby notified to produce the Petitioner, together with such documents in his file as he believes support the allegation of the petition that the Petitioner has reasonable cause to believe that Respondents have violated Section 8(b)(4)(i) and (ii), subparagraph (B) of the National Labor Relations Act as amended."
Attendance had not been compelled by use of subpoena, nor had there been a subpoena issued to compel the production of documents as provided for under Rule 45(a) and (b) of the Federal Rules of Civil Procedure. Petitioner, however, appeared as requested by respondents' notice.
During the taking of depositions, petitioner, upon advice of his counsel, refused to answer a number of questions propounded to him by respondents' counsel. Respondents, thereafter, on April 23, 1970 the day before the scheduled hearing on the petition, filed with the court a motion entitled, "Application For Order Under Rule 37(a) of F.R.C.P." Therein respondents sought an order from the court compelling petitioner to answer certain questions, and additionally sought a stay of the preliminary injunction proceedings. The motion was argued orally before the court on April 24, and the court took the matter under advisement and reserved decision thereon.
The injunction hearing proceeded on Monday, April 27, when petitioner presented his entire side of the case. The matter was then continued to May 1 when respondents, having thus had three additional days to prepare their defense after having been fully advised of all of the matters they sought by deposition, presented their testimony.
The court will consider the procedural and privilege issues raised by the motion prior to a discussion of the merits of the § 10(1) relief sought by the petitioner.
The issues before the court arising out of the Rule 37(a) motion are whether or not the discovery provisions of the Federal Rules of Civil Procedure are applicable to § 10(1) proceedings of the National Labor Relations Act, as amended; if the discovery provisions are applicable whether or not the "Freedom of Information Act," 5 U.S.C. § 552 and the National Labor Relations Board's claim of executive privilege bar discovery of the NLRB's investigations; and whether by notice of taking oral depositions without subpoena respondents may compel the production of documents sought in the notice.
The implementing Rule 1 of the Federal Rules provides that the rules govern the procedure in "all suits of a civil nature" except those exempted by Rule 81.
Rule 81(a)(5) provides: "These rules do not alter the practice in the United States district courts prescribed in the Act of July 5, 1935, ch. 372, §§ 9 and 10 (49 Stat. 453), as amended, U.S.C., Title 29, §§ 159 and 160, for beginning and conducting proceedings to enforce orders of the National Labor Relations Board; and in respects not covered by those statutes, the practice in the district courts shall conform to these rules so far as applicable."
Section 10(1) of the act, 29 U.S.C. § 160, the act under which these proceedings are brought, provides that, "Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony." The act further establishes, under 29 U.S.C. § 160 (i), that, "Petitions filed under this subchapter shall be heard expeditiously, and if possible within ten days after they have been docketed."
No express mandate is made either limiting or making applicable the discovery procedures of the Federal Rules in subsection (1) of the act although a sense of urgency is expressed in that the hearing is to be held within ten days, or as soon as possible, and that cases filed under subsection (1) are to be given priority over all other cases except those in the same class in the NLRB office where filed. 29 U.S.C. § 160(m).
The court agrees with respondents that the discovery procedures of the Federal Rules are not absolutely precluded by reason of the preliminary, yet permanent nature of an injunctive proceeding, pursuant to 29 U.S.C. § 160(1), and the limited function of the court in determining whether or not an injunction shall be issued against the respondents.
Though many of the reasons advanced as to the benefits of the discovery procedure, such as the prevention of delays, the expedition of the trial and the examination of the witness while his memory is fresh are inappropriate under subsection (1) proceedings, respondents have the right under the rules to be apprised of the factual allegations claimed giving rise to petitioner's "reasonable cause to believe" that a violation of the act has been committed in order to adequately prepare for the hearing on the petition. In the event discovery questions do arise under subsection (1) proceedings, the court should properly balance the objectives of discovery procedure; the function of the court in a subsection (1) proceeding; and the objectives of the act.
Assuming the applicability of the rules, the question then arises whether or not respondents, upon notice of deposition without subpoena, may compel the production of the files of the Regional Director for purposes of discovery. In Rule 26(b) it is provided that "the deponent may be examined regarding 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 examining party 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 relevant facts."
A deponent examined pursuant to Rule 26 is compelled to disclose the "existence, description, nature, custody, condition and location of any books, documents, or other tangible things," but he is not compelled to produce them pursuant to an oral demand. Bank of America Nat. T. & S. Ass'n v. Loew's Internat. Corp., 18 F.R.D. 491 (D.C.N.Y. 1956); Chemical Specialties Co. v. Ciba Pharmaceutical Prod., Inc., 10 F.R.D. 500 (D.C.N.J. 1950). A deposition notice alone does not compel the production of documents and even if a subpoena duces tecum had been issued pursuant to Rule 45(b) the deposing party may not circumvent the "good cause" requirements of Rule 34 and shift the burden on the deponent to quash the subpoena. Shenker v. U.S., 25 F.R.D. 96 (D.C.N.Y. 1960); Deep South Oil Co. of Texas v. Metropolitan Life Ins. Co., 21 F.R.D. 340 (D.C.N.Y. 1958).
In consequence all of respondents' objections raised as to the failure of petitioner to produce the documents called for in the notice of depositions are hereby dismissed.
The "executive privilege" argument raised by counsel for the government has questionable applicability. There has been no assertion of privilege by the General Counsel for the National Labor Relations Board as suggested by U.S. v. Reynolds, 345 U.S. 1, 97 L. Ed. 727, 73 S. Ct. 528 (1953), and Cooney v. Sun Shipbuilding & Drydock Co., 288 F. Supp. 708 (1968). In addition, the government failed to raise the question of the "Freedom of Information Act," Pub. L. 89-554, 80 Stat. 383 (1966), 5 U.S.C. § 552, as amended; Cooney v. Sun Shipbuilding & Drydock Co., supra. Nevertheless, these questions are moot since no compulsion existed to produce the files.
Counsel for the NLRB went to the deposition hearing prepared to release the names of witnesses intended to be introduced at the hearing on the petition. The petition filed by the government had sufficient clarity upon which respondents could have prepared an adequate defense. Respondents heard all of the petitioner's testimony and their counsel fully cross-examined petitioner's witnesses three days before they were obliged to defend the case. In consequence, the court concludes that sufficient discovery had been made available to the respondents, and considering the necessity of expeditious proceedings, no further discovery was necessary. Respondents' motion to compel answers in oral depositions filed April 21, 1970, will be denied.
After a full hearing on the merits of the petition; consideration of briefs of counsel, and being fully informed the court makes the following:
1. The petitioner is Regional Director of the Fourth Region of the National Labor Relations Board, an agency of the United States, and has filed the petition on behalf of the Board.
2. On or about October 22, 1969, December 22, 1969, March 16, 1960, and April 8, 1970, Sardec, Inc., a general contractor (hereinafter Sardec) filed charges, and subsequently amended charges alleging that Williamsport Building and Construction Trades Council, AFL-CIO, and Local 810, International Brotherhood of Electrical Workers, AFL-CIO (later identified and stipulated as Local 812), respondents herein, have engaged in and are engaging in unfair labor practices as defined by § 8(b)(4)(i) and (ii), subparagraph (B) of the National Labor Relations Act, 29 U.S.C.A., § 158 (b)(4)(i), (ii) (B).
3. Respondent Williamsport Building and Construction Trades Council is an unincorporated organization or association of craft unions of the building and ...