UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 26, 1989
NATIONAL LABOR RELATIONS BOARD, PETITIONER
BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, RESPONDENT, AND PATRICK GILLESPIE, ADDITIONAL RESPONDENT, IN CONTEMPT
P. Douglas Sisk, Special Master.
Presented for consideration are the objections of Petitioner, National Labor Relations Board (N.L.R.B. or Board), and Delran Builders, Inc., and some of its employees (Delran), to the production of certain documents sought in subpoenas duces tecum issued by respondents, Building and Construction Trades Council of Philadelphia (BCTC). Respondents have filed an answer, and Delran has filed a reply. To the extent that objections of the Board and Delran are parallel, I will dispose of them jointly.
I will briefly summarize the objections of Delran and the Board and the answers of Respondents. Delran and its employee-deponents file three general objections to the document requests: late service of the subpoenas;*fn1 overbreadth in the requests with respect to time frame; and, much of the requested documentation is privileged. Delran poses other specific objections, as follow:
1. BCTC's request for "any and all" photographs, audio/video tapes, and logs is overbroad, burdensome, and not relevant to the days at issue. (Delran agrees, however, to provide any such information with respect to the days in question);
2. BCTC's request for copies of the contracts between Delran and the construction users for the site seeks information which is not relevant to the issues, and the documents sought contain confidential and proprietary information;
3. BCTC's request for copies of contracts between Delran and each subcontractor is objectionable for essentially the same reasons set forth in #2, supra ;
4. BCTC's request for correspondence/memoranda sent between Delran and any subcontractors/suppliers who provided work or services during the period of alleged illegal activities is overbroad and seeks information which is not relevant. Delran asserts, notwithstanding, that it has no documents responsive to the request in its custody or control;
5. BCTC's request for copies of all proposals, offerings, bids, etc., which would lead to the identities of all bidders in connection with the sites seeks information which is not relevant, which is confidential and proprietary, and therefore, privileged from disclosure;
6. BCTC's request for copies of any statements Delran may have made in connection with the alleged illegal activities is an improper attempt to circumvent the Order of the Special Master entered April 7, 1989;
7. BCTC's request for copies of all police reports relating to the job sites is overbroad, not relevant, and in any event such documents are not in Delran's control;
8. BCTC's request for all internal memoranda prepared by any of Delran's employee with respect to the activities of BCTC at the job sites is overbroad, unduly burdensome, and not relevant to the issues. (However, to the extent the request seeks documents relevant to the illegal activity, Delran has no such documents in its control); and,
9. BCTC's request for copies of any and all log books, diaries, or other documents which relate to BCTC's activities at the job site is overbroad, unduly burdensome, and seeks documentation not relevant to the issues. (However, Delran agrees to provide any documents in its control relating to the alleged illegal activity.)
The Board's objections essentially are parallel to those offered by Delran, but the Board proffers certain additional objections. The Board anticipates BCTC's defense theories of a conspiracy among Delran and other entities to operate in a manner to destroy the Union's area standards which would justify its picketing of both primary and neutral gates. The Board argues that even if a conspiracy were proven, it is not a defense to unlawful picketing, and therefore, that any documents sought to support a conspiracy theory are improperly sought. The Board further argues that the defense cannot be developed ex post facto, but must have been a contemporaneous reason for the alleged illegal activity; therefore, the documentation which BCTC seeks for the development of such a defense theory is improperly sought.
BCTC responds, generally, that none of the requests are overbroad, unduly burdensome, or not relevant. It states further that its central defense is that of tainted reserve gates, and under broad principles of discovery, Fed. R. Civ. P. 26, it ought to be accorded broad latitude in requests reasonably calculated to lead to discovery of admissible evidence. In summary, it argues that all logs, photos, and tapes relating to all construction dates could lead to information bearing on the taint defense. It argues, as well, that the contracts, bids, bills of lading, correspondence and memoranda among the general contractors, sub-contractors, and others could lead to information which could reasonably support its conspiracy theory. BCTC further asserts that to the extent certain documents sought are confidential or otherwise privileged, they can be submitted for in camera review and redaction. Finally, respondents dispute any controlling effect of the April 7, 1989 order.
For essentially the reasons they present, I will sustain the Board's and Delran's objections. Ultimate resolution of these proceedings will require a determination whether BCTC violated the "reserve gate" doctrine on specific occasions through its conduct, and if so, whether its alleged conduct was excused in light of an affirmative defense, such as contamination of the gates. BCTC suggests that those defenses are contamination of the reserve gates and conspiracy to destroy area wage standards (Response, dated May 15, 1989, pp. 2-3).
I find the bulk of BCTC's requests overbroad, not relevant and otherwise not tailored to the issues presented in this case. Deponents have already turned over some information relevant to the dates of the incidents or alleged illegal activity. See, Delran's Objections, #'s 1, 7, 8, and 9, filed May 5, 1989, pp. 3-4, 7-8. See also, Board's Objections, #'s 1, 4, 7, 8, and 9, filed May 9, 1989, pp. 1-2, 4, 6. This information is clearly relevant and properly limited in scope to the dates at issue. With respect to request 6, for any and all "statements" made in connection with the incidents, the query does seem intended to gather the same information precluded by the May 6, 1989 order; therefore, the objection will be sustained. I note that to the extent it does request copies of statements made to NLRB investigators or attorneys, such statements will be turned over as Jencks material prior to trial. To the extent the request is not for such material, the documents which are sought seem to be covered by other requests.
With respect to the defense of contamination of the reserve gates, in order to support such a defense BCTC is entitled to show a "pattern of destruction of the 'reserve gate'" [system]. Local 76, IBEW v. NLRB, 742 F.2d 498, 501 (9th Cir. 1984) (emphasis added). If BCTC can show that it was in possession of evidence of gate contamination prior to the picketing, operating Engineers Local No. 12 (McDevitt & Street Co.), 286 NLRB No. 114, pp. 3-4; Nashville Building & Construction Trades Council (H.E. Collins Contracting Co., Inc., 172 NLRB 1138, 1139-40(1968), enf'd 425 F.2d 385 (6th Cir. 1970), it is entitled to develop the theory through discovery and through evidence and testimony adduced at trial. What BCTC cannot do is to manufacture an ex post facto defense from after-acquired information. BCTC has argued that such information is necessary because its witnesses did not keep accurate records of the events, such as the identity of trucks making deliveries through the neutral gate, that to the extent they were kept they are now lost, and that its witnesses' memories about the events are imperfect; therefore, the information sought is necessary to refresh memories. To allow the information sought by BCTC at this stage would emasculate the requirement to show that it had possession of evidence at the time of the alleged incidents that would have justified the alleged picketing of neutral gates. BCTC has received from the Board and Delran information, such as logs, diaries, etc., with regard to the dates of the alleged incidents. I hold that that information, together with deposition testimony, will be sufficient to allow BCTC to develop its defense, and I will sustain the objection.