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National Utility Service Inc. v. Northwestern Steel and Wire Co.

May 5, 1970

NATIONAL UTILITY SERVICE, INC., PLAINTIFF-APPELLANT,
v.
NORTHWESTERN STEEL AND WIRE CO., DEFENDANT-APPELLEE



Kiley, Cummings, and Kerner, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

This is a breach of contract action brought by National Utility Service, Inc., a New York corporation, against Northwestern Steel and Wire Company of Sterling, Illinois. In 1964, the parties executed a 5-year contract providing that plaintiff would make a technical investigation and analysis of the various factors in defendant's gas and utility rates and advise when reductions could be obtained. Defendant was obligated to pay a retainer fee of $1,000 and 50% of any savings secured by plaintiff. The complaint sought a judgment of $1,037,500 on the ground that pursuant to plaintiff's recommendations, defendant was obtaining $2,075,000 savings in the cost of gas purchased from Northern Illinois Gas Company from 1965 to 1970.

Defendant's amended answer denied that plaintiff made the required investigation and analysis, or that it made recommendations to defendant with respect to the gas rates defendant paid. The third affirmative defense charged fraud in that plaintiff "did not possess the qualifications it represented it had, did not intend to conduct the technical investigation and analysis it represented it would, and did not intend to furnish the reports it represented it would."

Under Rule 34 of the Federal Rules of Civil Procedure, the defendant filed a motion for the production of certain documents supported by an affidavit of counsel. The district court granted that motion in part. On rehearing, the broad production order was somewhat limited. The final production order confined the dates of the documents to the period from January 1, 1962, to February 19, 1969, and also provided "Defendant shall not disclose names of plaintiff's customers or details of plaintiff's relationship with them without further order of this Court." Plaintiff refused to comply with any portion of the order, and the district court struck the complaint. This appeal followed.

On appeal, plaintiff contends that it should not have to produce the following nine categories of documents:

"2. Writings showing, as to each person employed by National Utility as a rate analyst, posting clerk, checking clerk, researcher or set-up man, since January 1, 1962:

(a) The name of the employee;

(b) The date of his or her employment;

(c) The capacity in which he or she was first employed;

(d) The changes in that capacity and the dates thereof.

"3. Writings showing as to each person employed by National Utility as a salesman:

(a) The name of the employee;

(b) The date of his or her ...


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