Tobacco Documents Online

| 1 2 3 4 5 6 7 AO?2 • IRIIv ~f~2~ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ~rgued: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT NO. 669 -- August TeN 1988 December 22, 1988 Decided: January 23, 1989 Docket No. 88-7879 EN THE HATTER OF THE APPLICATION OF ITHE ~EEICAN TOBACCO COMPANY, ~T AL. ,~o~ ;I~A; ~c~o;L'o? ME;I~I~E .... and AMERICAN CANCER SOCIETY, Appellants, V. THE AMERICAN TOBAC~O COMPANY. PHILIP MORRIS, INC., and N.J. REYNOLDS TOBACCO COMPANY, Appellees. N;£; 2n; iL;IL I; .od oRIssA, District Judse.* Appeal from two orders of the District Court for the Southern District of New York (Kevin T. Duffy, Judge) enforcing third-party suhpoenas against appellants and denying their motion for a protective order in connection with two diversity suits pending in federal courts in Louisiana and Pennsylvania. Appeal dismissed. Michael A. Cardozo, New York, N.Y. (Charles S0 Sims, Proskauer Rose Goetz & Mendelsohn, New York, N.Y., on the brlef), for appellants. *The Honorable Thomas P, Grlesa of the United States District Court Eor the Southern District of New York, elttlng by designation.

72 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Donald I. $trauber, New York, N.Y. (Thomas E. Riley, Garyowen P. Horrisroe, Chadbourne & Parke, New York, N.Y., on the brief for appellee The American Tobacco Co., Howard G. .Kristol, Bruce H. Lederman, Reboul, MacMurray, Hewltt, Maynard & Kristol, New York, N.Y., on the brief for appellee R.J. Reynolds Tobacco Co.; David R. Davies, Hunton & W!lliams, New York, N.Y.) on the brief for appellee Philip Morris, Inc.), for appellees. JON 0. NEWMAN, Circuit Judge: This appeal presents the issue of whether an order directing a witness to produce evidence sought for use in a civil trial is appealable in advance of an adjudication of contempt where the order seeks only documents and the order has been issued by a court other than the court in which the underlying action is pending. The issue arises on an appeal by Mount Sinai School of Medicine and the American Cancer Society from two orders of the District Court for the Southern District of New York (Eevin T. Dully, Judge) enforcing third-party subpoenas against the appel- lants and denying their motion for a protective order. The subpoenas were issued at the request of appellees American Tobacco Co., R.J. Reynolds Tobacco Co., and Philip Morris, Inc. Because we conclude that the orders are not appealable, we dismiss the appeal. Facts The three tobacco companies, appellees in this proceed- ing, are among twenty-six defendants in one or both of two -2 -

1 2 3 4 5 6 7 8 9 "~ 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 diversity su~ts pending in federal courts in Louisiana and Pennsyl- vanla. Le~eune v. Armstrong World IndustriesT Inc., No. 86-0421 (W.D. La.)~ Shires v. Celotex Corp., No. 85-7141 (E.D. Pa.). Plaint~ffs ~n these cases allege that their decedents died of lung cancer resulting from a synergistic interaction between cigarette smoklng and exposure to asbestos. In connection w~th the defense of these and other suits in which similar claims have been made, the tobacco companies sought the issuance of subpoenas directing Mount Sinai School of Medicine and ~he American Cancer Society (collectively "the ~tnesses") to produce computer tapes containing data collected by Dr. Irving Se1~koff and other medical researchers at Mount Sinai (collec~ively "Dr. Sel~koff"). The da~a concern epidemlological studies conducted by Dr. $elikoff among more than 17,000 asbestos workers. The studies began in 1961 and are still in progress. In 1979 and ]980, Dr. Selikoff published articles concerning the resul~s of h~s re~earch, articles that the w~tnesses characterize as "~nterim reports°" Brlef for Appellants at 7. The articles concluded ~hat a combination of cigarette smoking and exposure ~o a~bestos significantly Increases ~he l~kellhood of lung CanCer0 The ~oba¢co companies obtained subpoenas requiring pro- duc~on of the computer tapes from the clerk of the District Court for the Southern Dis~tlct of New York. Se_~e Fed. R. C~v. P. 45(d). The subpoenas were issued tn connection with the Le~eune llt~ga~ion ~n Louisiana. It is ~he contention of the tobacco companies that -3- J72 iv.8182) ........ I ..........

I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 1"/ 18 19 20 21 22 23 24 29 26 they need the data underlying Dr. Selikoff's published conclusions to rebut expert witnesses who may rely upon his conclusions. Dr. Selikoff Is not an expert witness in any pending litigation. The witnesses moved to quash the Lejeone subpoenas on various grounds including absolute privilege, qualified privilege, and preclusion arising from an order of the New York Supreme Court quashing similar subpoenas seeking the computer tapes for use in litigation pending in California. Se___~e In re R.J. Reynolds Tobacco Co_._~., 136 Misc. 2d 282, 518 N.Y.S.2d 729 (Sup. Ct. 1987). On February 29, 1988, Jgdge Duffy denied the motion to quash and ordered the tapes produced. He suggested that the witnesses appeal, prior to his consideration of a protective order, wlth the understanding that the protective order would be considered in the event of affirmance. After filing a notice of appeal, the wit- nesses moved in this Court for a remand to the District Court so that the protective order would clatify the precise extent and terms of the required production. We granted that motion "without ,rejudice to [appellants'] right to £enew the present appeal, if necessary." Thereafter, Judge Dully issued a protective order grant- ing the wltnesaea permission to redact the names, street addresses, social security numbers, and union registration numbers of the workers in the study, but denied the witnesses' request to redact other potentially Identlfylng data, such as dazes of birth and death. The witnesses sought and were denied a stay of the enforce- ment of the subpoenas. " 4 - 72 ~.8I!21

1 2 3 4 S 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This Court then stayed the District Court's order$ and expedited the appeal. The panel also denied the motion of the tobacco companies to dismiss the appeal, without prejudice to renewal before the panel considering the merits. Discussion The law concerning appealability of orders requiring pro- duction of evidence from non-party witnesses has evolved somewhat fitfully, but the general principles are now reasonably clear, The basic rule~ often attributed to the Supreme Court's decision in Alexander v. United States, 20] U.S. 117 (1906), is that an order compelling the witness to produce evidence in a civi] or criminal proceeding is interlocutory and may be challenged by the witness only upon appeal from an adjudication of contempt. See National Super Spudst Inc. v. New York Hercantlle Exchange, 591F.2d ]74 (2d Cir. 1979); Kaufman v. gdelstein, 539 F.2d 811 (2d Cir. 1976); 9 Hoore's Federal Practice ~ 110.13[2] (2d ed. 1988). The rule ostensibly serves to ~inimize delay in the conduct of the primary proceedings in which the evidence is sought and spares appellate courts additional appeals in those instances where the contempt requirement is too burdensome to be pursued by the party seeking the evidence or too effective for the witness resisting disclosure. Judge Friendly has noted the virtue of the contempt requirement in affording both sides to the discovery dispute the "benefit from having a second look," National Super Spuds, Inc, v. New York Hercantile Exchange, supra, 591F.2d at 180, before determining - 5* rQ ~*" ~N llrl21

072 ~w.8162) 1 2 3 4 5 6 S S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 whether the evidence ought to be pursued and, if pursued, whether its disclosure ought to be resisted. See In re Grand Jury Subpoena Dated January 30~ 1986, 784 F.2d 116, 118 (2d Cir. 1986) (per curlam). Recognizing that a wltnens may not normally challenge a production order prior to a contempt adjudication, the witnesses in this case advance several reasons why the rule should not apply to them. First, they contend that the rule is usually Invoked against witnesses who decline to furnish testimony, whereas they have been ordered to produce'documentary evidence. In the latter context, they contend, a contempt adjudication is not needed to provide certainty as to the scope of the demand for production; with a testimonial demand, however, a contempt adjudication provides an appellate court wlth a record of the precise questions the witness has been asked and has refused to answer. See Kaufman v. Edel- stein, su..~, 539 F.2d at 814 n.3. This distinction answers one reason for requiring a contempt adjudication, but it provides no basis for ignotlng the concerns about Interrupting the underlying litigation, burdening appellate courts, and providing the contest- ants an opportunity for a useful "second look." Indeed, in the most well-known case in which doc~nentary evidence |n the form of tapes wae considered, the Supreme Court acknowledged that the usual rule against appealability fn advance of contempt would have applied but for a special exception accorded to the President of the United States. See United States v. Nlxon, 418 U.S. 683, 690-92 (1974). -6 -

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next, the witnesses point out that the subpoenas they seek to challenge have been issued in a district othez than the districts where the underlying lawsuits are pending. It is true that orders compelling testimony or production of evidence in what may properly be regarded as independent proceedings are appealable without the requirement of a contempt adjudicatlon. This rule is regularly applied in proceedings where evidence Is sought by admin- istrative agencies. E.g., Reisman v. Ceplin, 375 U.S. 440 (1964) Internal Revenue Service); Ellis v. ICC, 237 U.S. 434 (19]5) Interstate Commerce Commission); Wilmot v. Doyle, 403 F.2d 811 (gth Cir. 1968) (National Labor Relations Board)I see 9 Moore's Federal Practice ~ 110.1312](2) (2d ed. 1988). The Third Circuit has suggested that proceedings under Fed. R. Cir. P. 45 to compel evidence in a distant district "might well" be deemed to he governed by the rule applicable In agency proceedings to enforce information demands, Wm. T. Thompson Co. v. General Nutrition CorD., 671 F.2d i00, 102 (3d Cir. 1982), though the Court placed its decision in favor of appealability on other grounds, In a similar veln, we have allowed appeals from orders under Fed. R. Cir. P. 27 authorizing proceedings to perpetuate testimony In advance of filing an action. Mosseller v. United States, 158 F.2d 380 (2d Cir. 1946). But the Supreme Court has drawn a distinction between independent proceedings to obtain evidence, llke the agency cases, and proceedings that are ancillary to pending Judicial ~roceedtngs, denying appealability in the latter situation in the ,72 ~,llS2] ~J ................. -7-

& I 2 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 26 absence of contempt. See Cohbledick v. United States, 309 U.S. 323, 329-30 (lg40). Indeed, the seminal case of Alexander v. United States, supra, was a situation where evidence was sought in one district for use in proceedings in another district, and appeal of the production order was rejected in th~ absence of contempt. The witnesses further contend that this Circuit has specifically allowed an appeal of a production order in Dixon v. 80 Pine Street Corp., 516 F.2d 1278 (2d Cir. 1975). Dixon entertained an appeal from an order requlring the Department of Buildings of the City of New York to produce documents it bad assembled in =onnection with its investigation of an explosion. The party that obtained the subpoena sought to have the City held in contempt for non-compllance, but the motion was denied. Prior to the merits appeal, a motions panel had denied a motion to dismiss without opinion, see Id. at 1280. The merits panel noted that ruling and added, without elaboration, that since the City was not a party to the underlying action, "as to it the dls=overy order may be deemed final." ]_~d. The only authority cited was a "c._[." reference to United States v. Nlxon, supra. Though the citation to Nixon suggests that the merits panel may have thought that the need for a contempt edJudlcatlon was as inappropriate for the City as the Supreme Court thought it was for the President, our Court has sub- sequently viewed Dixon as something of an aberration from the usual rule against appealability. Commenting on Dixon, Judge Friendly noted that the issue Of appealability had not been briefed to the - 8- 072

I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 merits panel and that the unpublished ruling of the motions panel was not entltled to precedentlel effect under our Local Rule J 0.23. See Na~ionBl Super gpiJd~t ]nc. v. New York Mercantile Exchanf~.e, s~_~, 591 ~.2d at 176 n.4. Whether Dixon is to be diminl~hed as retting on a non-.precedential order or distinguished because it involved a c~ty and contempt had been sought without success, it does Dot con~mlt this Circult to abandonment of the Alexander rule, which we have repeatedly acknowledged. See Kaufman v. Edelsteln, supra; Baker v. F & P Investment, 470 F.2d 778, 780 n,3 (2d Cir. 1972), ~er~. den~ed, &ll U.S. 966 (19Y3); Gear Co, v. Bor~-Warner Corp,, 381 F.2d 551, 554 (2d Cir. 196)). Next, the witnesses suggest that appealability has already been conclvsively determined in this litigstion, However, the first panel to consider this case simply granted a motion to remand ~ithout p~ejud|ce to renewal of the appeal, end the next panel denied a motion to dismiss expressly without prejudice to renewal of the moclon before this panel. No law o£ the case con- cerning appealsbillty was established by these prior Tulings. Finally, the witnesses contend that whatever the virtues of the "second look" in ordinary cases seeking evidence from third- >artier, the determlnation of the tobacco compBnJes to press for Dr. Sellkoff'a data and the determination of Mount Sinai to resist these demands is so clear on the p~esent record that the require- ment of a contempt adjudication Is a needless and tlme-wasting ritual. We do not doubt the witnesses' assessment of the strength - 9 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 ;5 ~6 17 18 19 20 21 22 23 24 25 26 of determination by both sides in this controversy. Nevertheless, we do not believe that appealability of production orders directed to third-party w~tnesses should turn on an appellate court's assessment of the vigor with which the evidence is either sought or resisted. That approach would invite p~emature appeals routinely in the hope of persuading ~he appellate court that contempt fs Unnecessary, At oral arg~e~tj some consideration was g~ven to the possibility that appeal at this s~age might be warranted under the line of cases i11us~rated by Perlman v. United States, 247 U.S. 7 (1918), in which a person whose rights are alleged to be violated by a production order may intervene end appeal the production order where the order is directed ~o another person who holds the docu- ments and who would not like1F risk contempt to test the validity of ~he claiment's objection. See United S~ates v. Nixon, supra, ~18 U.S~ at 691 (explaining Perlman on this basis); U~i~ed S~ates v. Ryan, 402 U.S. 530, 533 (1971) (same). Petlman might ~ell be applicable here if Dr. Selikoff or any of the workers ~nvolved in his ~tudy ~nte~vened to assert claim~ of ~heit own. But ~hey have not, and there is every reason ~o believe that Dr. $elikoff and a~ least the union to which ~he workers belong are a~are of the s~bpoenas. In any event, Perl~an may no~ be extended to permit the patty in possession of ~he subpoenaed documents to appeal prior to contempt s|mply because o~he~ persons migh~ have been able to do 80, - 10 - O72 L~.$r8~l