Grinnell Corp. v. Hackett
Grinnell Corp. v. Hackett
Opinion of the Court
The litigation spawning this appeal was initiated to test whether Rhode Island’s provision of unemployment benefits to striking workers violated federal law. On our prior consideration of the case we remanded it for a more detailed evidentiary record. Grinnell Corp. v. Hackett, 475 F.2d 449 (1st Cir.), cert. denied, 414 U.S. 858, 94 S.Ct. 164, 38 L.Ed.2d 108 (1973). That command led to further pre-trial discovery, which in turn has produced this appeal. The
“1. List the name, principal office address and Rhode Island address of each ‘underlying’ member business firm of the Chamber or of its affiliate, the Greater Providence Chamber of Commerce (hereafter ‘Providence Chamber’) who is now or who at any time relevant to this action has been an employer subject to the Rhode Island Employment Security Act. 28 R.I.G.L. § 28-42 — 1 et seq. (hereafter ‘RIESA’).”
The Chamber resisted answering this interrogatory, claiming that it sought constitutionally protected information, see NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and that disclosure of the identities of the Chamber’s member firms would subject them to violence, property destruction, and other forms of harassment and economic reprisal. On January 15, 1975, the district court ordered the Chamber to answer Interrogatory No. 1 and other contested interrogatories, but the order contained a protective provision barring use of the Chamber’s disclosure for any purpose other than defense of this lawsuit.
“A discovery order is not usually ‘final’ — and hence not immediately appealable — as the litigation in conjunction with which the discovery is sought is still pending in the district court. 28 U.S.C. § 1291.” Sheehan v. Doyle, 513 F.2d 895, 898 (1st Cir. 1975). Recognizing this principle, the Chamber argues we have jurisdiction by virtue of the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Professor Moore has identified three characteristics an order must possess to satisfy the Cohen rule:
“(1) the order must be a final determination of a claim of right ‘separable from, and collateral to,’ rights asserted in the action; (2) it must be ‘too important to be denied review,’ in the sense that it ‘presents a serious and unsettled question’; and (3) its review cannot, in the nature of the question that it presents, await final judgment because ‘when that time comes, it will be too late effectively to review the order and rights conferred . will have been lost, probably irreparably.’ ” 9 J. Moore, Federal Practice 1¡ 110.10, at 133 (2d ed. 1973), quoting Cohen.
These characteristics can be reduced to the three issues of separability, importance, and urgency.
We are not required to rest our dismissal of this appeal on the collaterality issue alone. In Cohen the Court stressed the importance of the issue it was called upon to decide:
“[W]e do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security . . . appealability would present a different question.” 337 U.S. at 547, 69 S.Ct. at 1226.
The Second Circuit has repeatedly held that an important factor bearing on the application of Cohen is whether decision of the issue appealed will settle the matter not simply for the case in hand but for many others. E. g., Ronson Corp. v. Liquifin Aktiengesellschaft, 508 F.2d 399, 401-02 (2d Cir. 1974); International Business Machines Corp. v. United States, 480 F.2d 293, 298 (2d Cir. 1973) (en banc), cert. and leave to file petition for extraordinary writ denied, 416 U.S. 979, 980, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 773 (2d Cir. 1972); Donlon Industries, Inc. v. Forte, 402 F.2d 935, 937 (2d Cir. 1968); American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 280 (2d Cir. 1967).
Appellant argues in its reply brief that this appeal presents an important and unsettled question: whether the first amendment privilege recognized in NAACP v. Alabama, supra, must be accorded to an association whose membership consists of corporations as distinguished from one whose members are natural persons. If we assume that this is indeed an unsettled question, that concession gives little succor to the Chamber’s cause, for the district court did not bottom its discovery order on a rejection of the Chamber’s position. The basis for - the order was that the information sought was “highly relevant” and that the Chamber had waived its first amendment protection by putting harm to its members in issue in the suit. Whether these decisions were right or wrong, they do not present the important question the Chamber asserts.
The third Cohen condition, urgency, concerns whether denying review would leave the party seeking it “powerless to avert the mischief of the order.” Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 419, 62 L.Ed. 950 (1918). Here, the Chamber has not shot the last arrow in its quiver, since it can refuse to comply and seek review from the sanction, if any, imposed for that refusal. See Gialde v. Time, Inc., 480 F.2d 1295, 1300 (8th Cir. 1973); Carr v. Monroe Mfg. Co., 431 F.2d 384, 387 (5th Cir. 1970), cert. denied sub nom. Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971). The Supreme Court has recently styled it “a familiar procedure” to advise one’s client “to resist , and risk a contempt citation, thereby allowing precompliance appellate review.” Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 593, 42 L.Ed.2d 574 (1975). And earlier cases echo the same theme. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cob-bledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). If we treat these cases as providing guidance regarding the content of the urgency standard, they suggest that the Chamber’s claim that review must be afforded now lest meaningful review be forever lost must fail absent a contempt adjudication.
The Chamber could secure review of a criminal contempt finding. See Union Tool Co. v. Wilson, 259 U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922). If the district court certified it as final under Fed.R.Civ.P. 54(b), the Chamber could also appeal immediately from an order dismissing its complaint as the sanction for noncompliance. United States v. Procter & Gamble Co., 356 U.S. 677, 680-81, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Admittedly there is less certainty as to whether an order adjudicating a party in civil contempt would be appealable, see Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936); Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 519, 34 L.Ed.2d 488 (1972),
We can treat the petition for a writ of mandamus and/or prohibition briefly. The District of Columbia Circuit recently disposed of a similar petition with an opinion that also answers the claim presented in this case. Nation
Appeal dismissed and petition denied.
. The protective order reads as follows:
“Defendant-Intervenor United Steelworkers of America, AFL-CIO-CLC will not make use of the list of member firms which the Chamber of Commerce of the United States of America and the Greater Providence Chamber of Commerce must provide in answer to interrogatories or disclose the identity of such member business firms except for the sole purpose of defending this lawsuit and for no other purpose.”
. There is authority for recognizing a fourth requirement, namely, finality. See Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir. 1975), petition for cert. filed, 43 U.S. L.W. 3637 (U.S. May 27, 1975) (No. 74-1483). This requirement means that the district court’s disposition of the matter for which collateral order treatment is sought must be final rather than provisional. This analysis does not add much to Professor Moore’s statement of the prerequisites, however, because if the urgency requirement is satisfied the finality condition is necessarily met as well. It is tautological that if the district court’s disposition of the issue is provisional rather than final,
. The Chamber’s rejoinder to this argument is that if it is accepted “no discovery order involving the First Amendment right of freedom of association would ever be immediately ap-pealable, even where such information was in fact privileged, since in performing the balancing test required under NAACP [v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963),] and Bates [v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960),] a court must always consider the relevance of the sought after information to the main case.” We recognize the possibility that the information sought to be discovered might be so minimally relevant and its discovery so grossly intrusive into protected rights that the order could be realistically viewed as a collateral one. See generally Eisen, supra, 417 U.S. at 171, 94 S.Ct. 2140. This is not such a case.
. In Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., supra, the Second Circuit stated
. The Alexander, Cobbledick, and Ryan cases do not distinguish between civil and criminal contempt in asserting that appeal would lie from contempt. But those cases may be distinguishable if the appellants there are viewed as strangers to the main proceedings rather than parties to the litigation.
. The Supreme Court denied a stay of the district court’s disclosure order in the Richey case. See 421 U.S. 902, 95 S.Ct. 1549, 43 L.Ed.2d 770 (1975).
Reference
- Full Case Name
- The GRINNELL CORPORATION, and The Chamber of Commerce of the United States of America v. Mary C. HACKETT, Director of the Department of Employment Security of the State of Rhode Island and John J. Affleck, Director of the Department of Social and Rehabilitation Services of the State of Rhode Island, and United Steelworkers of America, AFL-CIO-CLC, Intervenor-Appellee
- Cited By
- 34 cases
- Status
- Published