The opinion of the court was delivered by: Will, District Judge.
Respondents Milk Wagon Drivers Union Local 753 and Thomas
Haggerty have moved to dismiss this action pursuant to Rules
37(b)(2) (iii) and 41(b), F.R. Civ.P., the former of which
provides for dismissal of an action upon the failure of a party
to answer any question propounded upon oral examination which
that party has been ordered to answer and the latter of which
authorizes dismissal for failure to comply with any order of
On February 5, 1964, Ross M. Madden, in his capacity as
Regional Director of the 13th Region of the National Labor
Relations Board, hereinafter called "the Board", filed a petition
under § 10(l) of the National Labor Relations Act, as amended,
29 U.S.C. § 160(l), seeking an
injunction against respondents Local 753 and Haggerty pending
disposition of a case involving these respondents awaiting final
determination by the Board. A date for a hearing was set and
discovery initiated. When notice of deposition was served upon
petitioner Madden, a "Motion That Deposition Not Be Taken and For
an Order Under Rule 30(b)" was filed on his behalf. In denying
this motion the Court, on March 13, issued an order requiring him
to appear for deposition, the substance of which deposition was
specifically ordered not to include "the scope, conduct or extent
of the preliminary investigation" of the charges alleged in the
case pending before the Board.
The deposition commenced as directed, but petitioner Madden, on
the advice of counsel, refrained from answering many of the
questions put to him. The respondents then moved for an order to
compel the petitioner to answer the questions propounded to him.
Such order was entered on March 25 as follows:
"This matter coming on to be heard before the
Honorable Hubert L. Will at 10:00 a.m. on March 25,
1964 on Respondent's Motion to compel answers to
questions on oral deposition of Ross M. Madden and
all parties being represented by counsel and the
Court being fully advised in the premises.
"IT IS HEREBY ORDERED that Ross M. Madden,
petitioner, be and he hereby is ordered to answer all
certified questions and other questions which relate
to the facts or other matters upon which Ross M.
Madden, petitioner, predicated the filing of the
Petition in the above-captioned matter, which relate
to the facts or other matters pertaining to the
allegations of the petition, and which relate to
whose decision it was to file the Petition in the
above-captioned matter and to issue complaint in
"IT IS FURTHER ORDERED that Ross M. Madden,
petitioner, is not compelled to answer any certified
questions and other questions which may be propounded
to him in the course of the oral deposition as to the
internal administrative machinery of the National
Labor Relations Board and is not compelled to answer
any question as to the specific evidence which he
intends to adduce in the course of the hearing on the
Petition in the above-captioned matter.
"Done and entered at Chicago, Illinois, this 25th day
of March, 1964."
Pursuant to the order, petitioner Madden appeared for the
resumption of his deposition on March 26. Many of the same
questions relating to facts upon which the allegations of the
petition are based were again asked of him. The petitioner was
again instructed not to answer these questions and he adhered to
the advice of his counsel. The petitioner repeatedly having
refused to reply to questions which he was ordered to answer by
the Court, the respondents now move to dismiss.*fn1
"Inquiry into the facts underlying the Regional
Director's belief that respondents had violated the
Act, is no more than inquiry which is calculated to
determine whether or not an unfair labor practice has
in fact been committed. Clearly on the basis of the
cases relating to the court's function in 10(l)
proceedings, this issue is not before the court, and
discovery which is designed to ascertain such facts,
should not be allowed, for the facts themselves are
completely irrelevant and immaterial to the litigable
issue before the court."
It is obvious that discovery relating to whether the Regional
Director has "reasonable cause" to believe that an unfair labor
practice has been committed is not the same as discovery as to
the ultimate question of whether such a practice has in fact been
committed. Some evidence indicating reasonable grounds for such a
belief may also establish that an unfair labor practice has been
committed. Other grounds for such a belief, on the other hand,
may ultimately turn out not to be supported by credible evidence.
Unless the District Courts are merely to be rubber stamps,
issuing injunctions under Sec. 10(l) whenever requested by a
Regional Director to do so, evidence establishing the "reasonable
cause" basis for the injunction will have to be presented at the
hearing on the petition. And unless discovery is permitted in
advance thereof, the respondent will face the possibilities of
surprise and inadequate preparation which the Federal Rules were
designed to eliminate.
There appears to be no reason why normal discovery limited to
the issues raised by the petition for an injunction should not be
required. No question of emergency or urgency is presented.
Neither the Federal Rules nor any statute exclude Sec. 10(l)
proceedings therefrom. Rule 1 of the Federal Rules determines the
scope of their application and provides that the Rules "govern
the procedure in the United States district courts in all suits
of a civil nature whether cognizable as cases at law or in
equity, with the exceptions stated in Rule 81." The proceeding
here before the Court is not among those exempted by Rule 81.
The facts in the instant case are similar to those in Fusco for
and on Behalf of N.L.R.B. v. Richard W. Kaase Baking Co.,
205 F. Supp. 459 (N.D.Ohio 1962), wherein the respondent union sought,
over the Board's objections, to take the deposition of the
Regional Director of the Eighth Region, Richard Fusco, and of an
attorney for that office. In holding that the union was ...