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ROCKWELL INTL. CORP. v. H. WOLFE IRON & METAL CO.

December 15, 1983

ROCKWELL INTERNATIONAL CORP., Plaintiff
v.
H. WOLFE IRON AND METAL CO., NEW CASTLE JUNK COMPANY, INC., WILKOFF COMPANY, LEE WILKOFF, PHYLLIS WILKOFF, RANDALL WILKOFF, ARTHUR EPSTEIN, ROLAND LEVINE, STEVEN LEVINE and BRUCE PICKEL, Defendants



The opinion of the court was delivered by: MENCER

 This memorandum and order will address Rockwell International Corporation's motions to compel responses from Lee and Randall Wilkoff. Those areas of inquiry governed by this ruling are the plaintiff's deposition of Lee Wilkoff, the plaintiff's first set of interrogatories to Lee Wilkoff, the plaintiff's deposition of Randall Wilkoff, the plaintiff's first set of interrogatories to Randall Wilkoff and the plaintiff's request that Randall Wilkoff produce handwriting exemplars.

 Initially, we find that Randall Wilkoff, a defendant in this civil action, cannot be compelled to create, upon the request of the plaintiff, documentary evidence which is not already in existence in some form. Rule 34(a), Fed.R.Civ.P., the rule under which the request for exemplars was implicitly made, is limited in its scope to documents "which are in the possession, custody or control of the party upon whom the request is served." "Rule 34 cannot be used to require the adverse party to prepare, or cause to be prepared, a writing to be produced for inspection, but can be used only to require the production of things in existence." Soetaert v. Kansas City Coca Cola Bottling Co., 16 F.R.D. 1, 2 (W.D.Mo. 1954) (citations omitted).

 The defendants' refusal to answer interrogatories and deposition questions put to them is based on a claimed Fifth Amendment privilege against self-incrimination. In this circuit, the validity of a witness' invocation of his Fifth Amendment privilege is tested by a two-step procedure. First, the district court must determine whether "there appears to be a conceivable possibility that the witness could be linked to a crime against the United States." American Cyanamid Company v. Sharff, 309 F.2d 790, 794 (3d Cir.1962). If this initial inquiry is answered affirmatively, the court must determine whether the facts sought to be elicited by the questions could "form a link in the chain of evidence necessary to convict [the witness] . . . ." Id. at 797. Application of the privilege should not be denied unless it is "' perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such a tendency'" to incriminate. Hoffman v. United States, 341 U.S. 479, 488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), citing Temple v. Commonwealth, 75 Va. 892, 898 (1881).

 The privilege against self-incrimination may be invoked by a compelled witness "in any proceeding when his answers to questions 'might incriminate him in future criminal proceedings.'" United States v. Mahady & Mahady, 512 F.2d 521, 525 (3d Cir. 1975), citing Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). And, the Supreme Court has cautioned that a witness cannot be required to prove the hazard involved in his answering the contested questions. To do so would compel him "to surrender the very protection which the privilege is designed to guarantee." Hoffman, 341 U.S. at 486. "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id. at 486-87.

 Plaintiff's first set of interrogatories

 The interrogatories served by the plaintiff on both Lee and Randall Wilkoff are exactly the same in number and content. This portion of our ruling will apply to both defendants.

 Our starting point is Rule 33, Fed.R.Civ.P., the rule of civil procedure governing interrogatories to parties. Rule 33(a) requires that "each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer." Fed.R.Civ.P. 33(a). We note that the defendants have failed to file any type of formal response to the interrogatories. We will require them to file either their answers or objections, along with the reason for each objection.

 The forty interrogatories propounded to defendants Lee and Randall Wilkoff fall into four categories. Interrogatories Nos. 1-17 and 24 concern the Wilkoff Company's involvement in interstate commerce. Interrogatories Nos. 18-23 concern the quality of plaintiff's scrap. Interrogatories Nos. 25-34 concern the Wilkoff Company's purchase of scrap from the plaintiff and the company's sales of scrap. Interrogatories Nos. 35-40 request the identification of the Wilkoff Company's officers, directors, stockholders, employees, bank accounts and office employees. We do not believe that answers to Interrogatories Nos. 35-40 could tend to incriminate either Lee or Randall Wilkoff and, therefore, will order them to answer those interrogatories. The information sought in Interrogatories Nos. 1-34 is of the type that could conceivably operate as a link in the chain of evidence necessary to convict an individual of Sherman Act violations, and for that reason, presents the Court with troubling questions regarding the responsibility of the defendants to answer these interrogatories.

 Lee and Randall Wilkoff are in the unenviable position of being both individual named defendants and corporate officers of the Wilkoff Company. Corporations are not protected by the privilege against self-incrimination and a corporate agent has a duty to produce the corporation's records, even where the records might incriminate him personally. Wilson v. United States, 221 U.S. 361, 384, 31 S. Ct. 538, 55 L. Ed. 771 (1911). Corporate agents do, however, retain their personal privilege against self-incrimination. Curcio v. United States, 354 U.S. 118, 124, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1957). It is well-settled that the privilege is purely personal, United States v. White, 322 U.S. 694, 699, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944), and that "it protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by legal process against him as a witness." Id. The White court succinctly explained the theory behind this limitation in the scope of the privilege.

 
Basically, the power to compel the production of the records of any organization, whether it be incorporated or not, arises out of the inherent and necessary power of the federal and state governments to enforce their laws, with the privilege against self-incrimination being limited to its historic function of protecting only the natural ...

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