The opinion of the court was delivered by: METZNER
This is a motion by the Government for interpretation and enforcement of a provision of a consent judgment entered in this court in 1948, in a case brought under sections 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C.A. §§ 1, 2, involving certain nickel products and nickel-bearing material. The motion is predicated upon paragraph X of the judgment which provides that
'Jurisdiction of his cause is retained for the purpose of enabling only the Attorney General or Inco Ltd. or Inco Delaware to apply to the Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this judgment. * * *'
The present controversy is as to the proper interpretation of paragraph VII of the judgment, which provides the means of policing the judgment. The pertinent part of that paragraph reads as follows:
'For the purpose of securing compliance with this judgment and for no other purpose, duly authorized representatives of the Department of Justice shall, upon written request of the Attorney General or an Assistant Attorney General, and on reasonable notice to the defendants, be permitted, subject to any legally recognized privilege (1) access, during the office hours of Inco Delaware, to all its books, ledgers, accounts, correspondence, memoranda and other of its records and documents in its possession or under its control relating to any matters contained in this judgment; (2) access at reasonable times to such records and documents of Inco Ltd. as may be then located in the United States in the possession or under the control of Inco Ltd. relating to any matters contained in this judgment. * * *'
The Attorney General has designated representatives of the Federal Trade Commission as representatives of the Department of Justice pursuant to this paragraph. On August 8, 1961, two Federal Trade Commission investigators appeared at the offices of the defendants with a written notice that the investigation was being made, and a request for access to certain documents set forth in an appendix.
It should be noted that the request demands access to material 'including but not confined to' the categories set forth.
The defendants contend that they have the right to make the initial selection of those documents that they conceive relate to matters contained in the judgment and to present only these to the Government. They state that such matters constitute a small fraction of their business and that the records relating to these matters constitute a similarly small portion of the total records. They assert that it could not have been intended that the Government have a right to search through all their records seeking those relative to the judgment.
The Government's position is that it does not want to see, inspect or copy all documents of the defendants. 'It does, however, want access to 'all' such documents and files as are necessary to insure that all relevant documents have been produced.' The Government interprets the provision in question as granting to it the right to be present when files are examined, to see the documents that defendants consider irrelevant, and, if necessary, to challenge determinations by the defendants of nonrelevancy.
Defendants further assert that this motion is premature, since there is no evidence that they will not produce all the relevant records. This argument misses the point of the application, which is who shall determine which documents will be produced. In any event, the plain language of the decree states that either party may apply 'at any time for such further orders and directions as may be necessary or appropriate for the construction * * * of this judgment'. What is requested on this motion is plainly a 'construction' of the judgment.
Section 6(c) of the Federal Trade Commission Act, 15 U.S.C.A. § 46(c), provides:
'Whenever a final decree has been entered against any defendant corporation in any suit brought by the United States to prevent and restrain any violation of the antitrust Acts, (the FTC shall have power) to make investigation, upon its own initiative, of the manner in which the decree has been or is being carried out, and upon the application of the Attorney General it shall be its duty to make such investigation.'
The letter from the Attorney General to the Chairman of the Federal Trade Commission, referring this matter to the Commission, while designating the Federal Trade Commission as his representative under the provisions of the judgment, also requested investigation under this section, which he states has been 'virtually unused since its enactment in 1914.' I presume such comment is made in connection with referrals by the Attorney General and not voluntary investigations by the Federal Trade Commission.
Section 9 of the act, 15 U.S.C.A. § 49, provides, inter alia, that for the purpose of section 6,
'the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against * * *.'
No case has been cited to me, and I find none, which interprets section 9 to grant an unlimited right of inspection of corporate documents.
Where subpoenas are concerned it has been held that a corporation is entitled to protection against unreasonable searches and seizures afforded forded by the fourth amendment. Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906); In the Matter of the Grand Jury Investigation (General Motors Corp.), 174 F.Supp. 393 (S.D.N.Y.1959); cf. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). It is urged that if section 9 granted such an unlimited power, it would be unconstitutional as authorizing an unreasonable search and seizure.
However, determination of this question on this motions is unnecessary. The notice of motion served by the ...