The opinion of the court was delivered by: RAYMOND J. BRODERICK
Pending before the Court are several motions related to discovery in these consolidated class action proceedings. Defendant Premdor Corporation ("Premdor") has filed a motion pursuant to Fed. R. Civ. P. 26(c), which Defendants Steves & Sons, Inc. ("Steves") and Ledco, Inc. ("Ledco") have joined, requesting a protective order staying certain discovery proceedings. Defendants seek to stay this discovery until any criminal proceedings arising out of a related federal antitrust investigation are complete "or until such time as the employees, agents and officers of the defendants are no longer at risk of criminal prosecution." Plaintiffs oppose Defendants' motion for a protective order, and have also filed a motion pursuant to Fed. R. Civ. P. 37 seeking to compel Defendants to respond to interrogatories seeking information about communications between Defendants and their competitors related to pricing and other business activities. Defendants have opposed Plaintiffs' motion to compel, maintaining that they have answered Plaintiffs' interrogatories to the extent possible at this time and cannot compel their employees with personal knowledge of the facts to provide any additional information in light of the federal criminal investigation.
On August 11, 1995, Defendant Premdor filed an additional motion for a protective order seeking to stay certain class certification deposition discovery by Plaintiffs, contending that Plaintiffs are attempting to engage in the further discovery proceedings that Defendants have sought to stay through the earlier motions. Defendant Steves has filed a motion renewing its earlier motion for a protective order and incorporating Premdor's August 11, 1995 motion, and Defendant Ledco, Inc. ("Ledco") has filed a similar motion incorporating Premdor's August 11, 1995 motion. Plaintiffs have filed a response opposing any such protective orders.
For reasons discussed below, Defendants' motions for protective orders will be denied. In addition, Plaintiffs' motion to compel Defendants to answer interrogatories and respond to requests for production of documents will be granted.
In the civil actions presently before the Court, Plaintiffs allege that the Defendants, who are manufacturers of residential flush doors, engaged in conspiratorial activity to raise, maintain, stabilize, and fix prices of residential flush doors throughout the United States. Plaintiffs and members of the class they seek to represent are purchasers of residential flush doors, and filed these actions after each defendant entered guilty pleas to one-count informations charging each defendant with violating Section 1 of the Sherman Act, 15 U.S.C. § 1.
Two of the actions, Lumco Industries v. Premdor Corp, Civil Action No. 2:94-3744, and Dubell Lumber Co. v. Premdor Corp., et al., Civil Action No. 2:94-4174, were originally filed in the Eastern District of Pennsylvania. On December 1, 1994, the Judicial Panel on Multidistrict Litigation transferred two actions from the Middle District of Florida to this Court for coordination and consolidation of pretrial proceedings: Norwood Sash & Door Mfg. Co. v. Premdor Corp., et al., Civil Action No. 8:94-975, and Tonka Building Supplies, Inc. v. Premdor Corp., et al., Civil Action No. 8:94-1127. Another action, Derr Lumber & Millwork Co. v. Premdor Corp., et al., Civil Action No. 2:95-2078, was filed in the Eastern District of Pennsylvania on April 10, 1995.
In the criminal proceedings charging each defendant with violating the Sherman Act, the United States filed a separate information against each defendant and did not identify any co-conspirators. Each defendant subsequently entered into a separate plea agreement. Defendant Premdor was sentenced by the Honorable Susan C. Bucklew, United States District Judge, Middle District of Florida, on June 22, 1994, and Defendant Steves was sentenced by Judge Bucklew on July 1, 1994. In conjunction with pleas of guilty to one count of price fixing, Defendant Premdor paid a fine of $ 6,000,000.00, and Defendant Steves paid a fine of $ 650,000.00. Defendant Ledco was sentenced by the Honorable Elizabeth A. Kovachevich, United States District Judge, Middle District of Florida, on January 30, 1995 and paid a fine of $ 250,000.00.
In its plea agreement with the United States, Defendant Premdor agreed to the following:
Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those facts beyond a reasonable doubt:
The defendant is a major producer of residential flush doors made and sold in the United States. The defendant and others engaged in a conspiracy to fix, raise, and maintain the prices charged to certain U.S. customers for residential flush doors, in unreasonable restraint of trade in violation of the Sherman Antitrust Act. As a result of the conspiracy, from at least as early as January 1993 through at least December 1993, prices for residential flush doors sold to certain U.S. customers were fixed, raised and maintained. The business activities of the defendant and co-conspirators that are the subject of this information were within the flow of, and substantially affected, interstate commerce.
The plea agreements entered into by the other Defendants and the United States include similar certifications of facts. Each plea agreement also includes similar sections regarding cooperation and immunity for its officers, agents, and employees. For example, the plea agreement between Premdor and the United States includes the following sections:
6. Individuals Who May Qualify for Immunity
The United States agrees that each present officer, agent or employee of Premdor Inc. (other than its current President and Chief Executive Officer), its affiliates, or subsidiaries, who may have knowledge that might be of assistance to any federal grand jury or other federal criminal investigation of antitrust violations in the residential flush door industry may, within 60 days from the date of entry of the plea, unless extended by the United States in writing, provide the Antitrust Division with all information in his or her possession which might assist the grand jury investigation and not attempt to protect any person or entity by giving false information or by omission, and not falsely implicate any person or entity. If, in the judgment of the staff, the individual is fully honest, candid and truthful, the attorneys will, at their option, either request authority from the Assistant Attorney General in charge of the Antitrust Division to obtain a court order compelling the testimony of such officer, agent or employee before an appropriate grand jury pursuant to 18 U.S.C. § 6001 et seq., or inform the officer, agent or employee in writing that he or she will not be prosecuted based on the information provided or information derived therefrom. In any testimony before the grand jury pursuant to 18 U.S.C. § 6001, such officer, agent or employee shall be granted an opportunity to testify concerning the information provided to the Antitrust Division. The determination whether the individual has been fully honest, candid and truthful may be made after the investigation has been completed and is conditioned on a determination that the information provided was fully truthful and complete on all material points. If the individual has not been fully honest, candid and truthful, he or she will not be entitled to any non-prosecution agreement or immunity of any kind under this plea agreement. In that event, the United States agrees only that no statement made by the individual will be used directly against that individual in any proceeding arising out of this investigation, except to impeach his or her testimony, or in a prosecution for making a false statement. The Antitrust Division is free to use leads derived from information provided by the individual to pursue its investigation and any subsequent prosecution of that individual or others. In no event will any agent, officer or employee receive immunity from charges of perjury, obstruction of justice, or making a false statement in connection with this investigation after the date of the agreement.
Prior to the transfer of actions by the Judicial Panel on Multidistrict Litigation, this Court entered an Order consolidating actions in the Eastern District of Pennsylvania and establishing various pretrial procedures. This Court also entered an Order approving a schedule agreed upon by the parties for discovery. Following transfer of the Florida actions, this Court entered an Order approving an updated discovery and briefing schedule agreed upon by the parties. Notably, both the original and updated discovery and briefing scheduling agreed upon by the parties provided for extensive "merits" discovery while "class" discovery was also proceeding. The parties are in agreement that Defendants have produced over 100,000 documents in the course of discovery and identified numerous individuals who possess relevant information for possible deposition.
Plaintiffs submitted the following interrogatories numbered 10, 11, and 12 to Defendants Premdor and Steves:
10. State whether any of your officers or employees entered into any understanding, agreement, plan or scheme, express or implied, formal or informal, with any other person or any other residential door manufacturer, marketer, distributor, or supplier, concerning residential flush doors pertaining to prices, published prices, quoted prices, prevailing prices, discounts, future business, bids, territories, customers, allocation of business, discontinuation of any type or category of doors or ...