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ASSOCIATED CONTAINER TRANSP. LTD. v. UNITED STATES

December 4, 1980

ASSOCIATED CONTAINER TRANSPORTATION (AUSTRALIA) LTD., Petitioner,
v.
UNITED STATES of America and Sanford M. Litvack, Assistant Attorney General of the United States, Respondents; FARRELL LINES INCORPORATED, Plaintiff, v. UNITED STATES of America, Sanford M. Litvack, Assistant Attorney General of the United States and Roger W. Fones, Attorney for the United States Department of Justice, Defendants; HAMBURG-SUDAMERIKANISCHE DAMPFSCHIFFFAHRTS-GESELLSCHAFT, Eggert & Amsinck, d/b/a Columbus Line, Petitioner, v. UNITED STATES of America and Sanford M. Litvak, Assistant Attorney General of the United States, Respondents



The opinion of the court was delivered by: BRIEANT

Although these actions are filed by different plaintiffs under separate docket numbers, they arise from a single antitrust investigation and seek identical relief. All three plaintiffs name Hon. Sanford M. Litvak, Assistant Attorney General, and the United States of America as party-defendants. Farrell Lines, Inc. also names Roger W. Fones, an attorney for the Department of Justice as a Defendant. The discovery motions discussed below were argued together, and the Court will address the issues presented in all three cases together.

Petitioners are members, inter alia, of the Australian/Eastern U.S.A. Shipping Conference, U.S. Atlantic & Gulf/Australia-New Zealand Conference and participate in the New Zealand/U.S. Atlantic & Gulf Shipping Lines Rate Agreement. Pursuant to the Antitrust Civil Process Act, 15 U.S.C. §§ 1311-14 (as amended), three virtually identical Civil Investigation Demands ("CIDs") were served on plaintiffs, in connection with an antitrust investigation to determine whether there had been an actual or potential violation of 15 U.S.C. §§ 1 & 2 by a "conspiracy to restrain and monopolize trade in ocean transportation of commodities between the United States and Australia and New Zealand by resort to group boycotts, reciprocal dealing, and predatory pricing." *fn1" The CIDs order the production of documents relating to, among other items, the internal structure of the plaintiff companies, their relations and transactions with independent ocean carriers, their transactions with container manufacturers and container leasing firms, restrictive agreements with the New Zealand Wool Board or Australian Meat Board, and certain agreements and proceedings supervised by the Federal Maritime Commission. After attempts to negotiate a mutually agreeable modification of the CIDs failed, the three shipping companies sought, pursuant to 15 U.S.C. § 1314(b), to set aside or modify the Demands. Each shipping company asserted several of the following jurisdictional grounds as support for its application:

 
(1) The CID unlawfully seeks to investigate activity which is exempt from the application of the antitrust laws.
 
(2) The CID unlawfully seeks information from petitioner which has already been and is being sought by the Federal Maritime Commission, the agency which Congress has authorized to regulate the conduct of petitioners. Much of the information has already been produced to the Federal Maritime Commission.
 
(3) The CID inquires into matters that are within the exclusive jurisdiction of the Federal Maritime Commission.
 
(4) The CID inquires into matters that are within the primary jurisdiction of the Federal Maritime Commission.
 
(5) The CID unlawfully inquires into the sovereign acts of the governments of Australia and New Zealand in contravention of the "Act of State" doctrine.
 
(6) The CID contravenes the Noerr-Pennington doctrine by inquiring into dealings between shipping companies and the Federal Maritime Commission and agencies and instrumentalities of Australia and New Zealand.

 Each shipping company served interrogatories relating to these jurisdictional objections, citing Rule 33, F.R.Civ.P. as authority.

 Farrell Lines also asserts that the CID is tainted by the claimed ethical conflicts of Hon. Sanford M. Litvak, now an Assistant Attorney General, who formerly engaged in the general practice of law in this city. It has noticed the deposition of Mr. Litvak in support of this contention.

 The issues presently before this Court involve the right to discovery in this proceeding. *fn2" Defendants have moved for Protective Orders, pursuant to Rule 26(c), Fed.R.Civ.P., directing that discovery not be had, and plaintiffs have filed motions to compel discovery. At the hearing of these motions, the parties agreed to proceed on the disqualification claim solely on the basis of affidavits. The Court, therefore, grants the Protective Order to bar any discovery directed at Mr. Litvak, personally, with leave for petitioner, Farrell Lines to apply for discovery if it turns out that a factual issue precludes summary judgment.

 I now turn to consider whether petitioners are entitled, as a matter of right, to obtain answers to the Interrogatories served on Defendants. Defendants argue that, in CID proceedings, there is no discovery as a matter of right and it should only be permitted in exceptional circumstances to resolve a disputed issue of fact. They also contend that these discovery requests constitute an annoyance and an undue burden because they are neither necessary nor appropriate.

 Defendants contend that Rule 33 which provides that interrogatories may be served on any defendant as a matter of right after the service of a summons and complaint, is inapplicable to actions or proceedings in district court brought pursuant to the ACPA, which designates the initial pleading as a "petition for an order." Two shipping companies, Associated Container Transportation (Australia) Ltd. (hereinafter Associated) and Hamburg-Sudamerikanische Dampfschifffahrts-Gesellschaft, Eggert & Amsinck d/b/a Columbus Line (hereinafter Columbus) initiated these proceedings by Petitions filed on July 25, 1980 and July 29, 1980, respectively. Farrell Lines, Inc., (hereinafter Farrell), served a complaint. Defendants request that the Court treat Farrell's complaint as a properly filed "motion" which they contend is the proper procedure to apply for an order of the Court. The Court will determine Farrell's right to discovery as though it had designated its initial pleading as a "petition" authorized by the ACPA. No technical mislabelling of a pleading as a "petition," a "motion," or a "complaint" should alter the substantive rights of any party.

 Discovery has been allowed, in other situations, when the action was initiated by the filing of a "petition," see, e.g., International Union of Electrical, Radio and Machine Workers v. Westinghouse Electric Corp., 61 Labor Cases P 10,480 (S.D.N.Y.1969); Kennedy v. Rubin, 254 F. Supp. 190 (N.D.Ill.1966), or involved a pending motion, see, e.g., Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033 (10th Cir. 1975); H. L. Moore Drug Exchange, Inc. v. Smith, Kline & French Laboratories, 384 F.2d 97 (2d Cir. 1967). The issue, therefore, is not whether the petition that commences an action under the ACPA should be considered the ...


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