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D & H AUTO PARTS, INC. v. FORD MKTG. CORP.

October 7, 1971

D & H Auto Parts, Inc., Plaintiff
v.
Ford Marketing Corp., Defendant


Judd, District Judge.


The opinion of the court was delivered by: JUDD

Memorandum and Order

JUDD, District Judge.

 In an action for damages under the Robinson-Patman Act, 15 U.S.C. § 13a, for alleged price discrimination, a non-party witness has moved by order to show cause to quash a subpoena duces tecum served on it by the defendant. The subpoena duces tecum was directed to Auto Parts of Jamaica, Inc. (APJ) (formerly Shapiro Auto Parts of Jamaica, Inc.) and asked for all records of purchases of spark plugs, filters and batteries from D & H Auto Parts, Inc. (D & H) during the period May 1, 1968 to January 1, 1970, as well as sales of products so purchased to third parties during the period. The subpoena also asked for all other papers relating to any transactions or relationships between APJ and D & H with respect to purchase or sale of products of the Autolite-Ford Parts Division of Ford Marketing Corporation.

 The order to show cause was based on affidavits of the attorney for APJ and the attorney for plaintiff, but was not supported by the affidavit of any officer or employee of APJ.

 APJ is represented by the same attorney who represents Joseph Frisch, who was mentioned as a witness for plaintiff at the first pre-trial conference on March 31, 1971, and whom Ford has sought to depose.

 The objections of APJ to the production of documents are based on the grounds (1) that the request is burdensome; (2) that the documents are not relevant to issues in the case; and (3) that defendant already has copies in its files of many of the documents. These objections require some analysis of the pleadings.

 The complaint in this case seeks treble damages on the ground that D & H was not granted "a third 10% discount" on nationally branded automotive replacement parts sold by Ford, and which Ford was allegedly granting to others similarly engaged in competition with D & H.

 The answer asserts that the three 10% discounts consist of a basic discount given to all warehouse wholesalers from the published wholesale price, a "redistribution allowance" on automotive replacement parts purchased from Ford and resold to qualified wholesalers, and a "recompensation allowance" on automotive replacement parts sold by qualified wholesalers to certain purchasers "for their own use and not for re-sale." Ford denies that there was any price discrimination against D & H.

 APJ asserts that the nature of sales by D & H is not relevant because Ford did not consider that wholesalers had any duty to police the customers to whom they sold.

 Before the present action was brought, Ford had started an action in the state court against D & H Auto Parts, Inc., the plaintiff herein, to recover $56,081, which it asserted was an overpayment of the "redistribution allowance" which had been paid to D & H on the basis of falsely submitted claims for sales of spark plugs to qualified wholesalers. APJ asserts that the subpoena is intended to obtain information in aid of that lawsuit.

 Ford, in its opposing memorandum, has offered to limit its subpoena to the items listed in the order which is being granted.

 Discussion

 Generally, a non-party witness cannot object to the production of evidence if it has any possible bearing upon the issues. 5 Moore's Federal Practice, P45,05[1], p. 1727 (1969).

 Where the nature of the sales by D & H and the re-sales by its customers may be pertinent to its asserted right to one of the discounts which is involved in the claim of price discrimination, the documents relating to such sales and re-sales may well be relevant. It is immaterial that the ...


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