Edwards v. Gordon & Co.

94 F.R.D. 584, 1982 U.S. Dist. LEXIS 15083
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 27, 1982
DocketCiv. A. No. 80-0566
StatusPublished
Cited by7 cases

This text of 94 F.R.D. 584 (Edwards v. Gordon & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. Gordon & Co., 94 F.R.D. 584, 1982 U.S. Dist. LEXIS 15083 (D.C. Cir. 1982).

Opinion

MEMORANDUM OPINION and ORDER

ARTHUR L. BURNETT, United States Magistrate.

The pending motion to compel production of documents and payment of expenses filed March 4, 1982, with accompanying memorandum in support thereof, addressed to plaintiff’s second request to defendant for production of documents filed January 21,1982, raises the classic discovery problem of an overbroad and all comprehensive request for documents and records under the philosophy of a liberal interpretation of relevancy, pursuant to the standards of Rule 26, Federal Rules of Civil Procedure. Plaintiff has asserted that the broad and liberal standard of relevancy to be applied at the discovery stage is well known and should control, citing, e.g., Association for Women in Science v. Califano, 566 F.2d 339 (D.C.Cir.1977); 8 Wright and Miller, Feder[585]*585al Practice and Procedure, § 2008 at pp. 46-47 and cases collected in note 23.

Defendant has responded with the classic stone wall, to wit, “Defendant objects to the foregoing request on the ground that it calls for documents that are not relevant to the subject matter of this action and not reasonably calculated to lead to admissible evidence.” Thus, the defendant declined, even after a telephone call from the plaintiff for the purpose of resolving the discovery impasse, to furnish those documents and records clearly relevant to the issue of payment of commissions and fees to brokers in connection with the purchase of the underlying securities involved in the Gordon & Co. Limited Price Put and Call Options Program, and the failure to make any disclosure to potential investors regarding such commissions and fees, the issue which lies at the heart of this litigation.

Literally read, plaintiff’s discovery request would require production of every sheet and scrap of paper and information from every other record source in Gordon & Co.’s files concerning its Limited Price Put and Call Options Program. Indeed, in plaintiff’s first request to defendant for production of documents, plaintiff defined “documents” as including any written record or graphic matter, however produced or reproduced, “in the possession, custody or control of the Defendant, its subsidiaries, its merged or acquired predecessors, its former and present partners, counsel, agents, employees and/or persons acting on its behalf.” Thus, employing a standard of “relevant to the subject matter involved,” plaintiff’s counsel wishes to inspect and examine all documents in Gordon & Co.’s records and files for the relevant period of January Í, 1978 through June 30, 1980.1 (Emphasis added.)

However, with the Federal Rules of Civil Procedure changes in 1980 there has developed a far greater concern about discovery abuse and the burden and expenses of extensive discovery. This is an appropriate concern whether the party subject to the discovery is an individual or a business or corporate enterprise, which will undoubtedly pass on its costs of doing business, including legal expenses, to the consumers of its goods and/or services. Thus, judges and magistrates are becoming more sensitive to the need for a greater use of Rule 26(c) of the Federal Rules of Civil Procedure to protect against “annoyance, embarrassment, oppression, or undue burden or expense.” Further, Rule 26(f) providing for discovery conferences was added in 1980 to provide for greater judicial control to ameliorate the unwarranted expenses and burdens associated with pretrial discovery in civil litigation.

In civil securities litigation, even prior to 1980, there had been some judicial recognition of the special problems and potential for discovery abuse. Mr. Justice Rehnquist in 1975 had the occasion to observe:

“The potential for possible abuse of the liberal discovery provisions of the Federal Rules of Civil Procedure may ... exist in this type of case to a greater extent than they do in other litigation. The prospect of extensive deposition of defendant’s officers and associates and the concomitant opportunity for extensive discovery of business documents, is a common occurrence in this and similar types of litigation. To the extent that this process eventually produces relevant evidence which is useful in determining the merits of the claims asserted by the parties, it bears the imprimatur of those Rules and of the many cases liberally interpreting them. But to the extent that it permits a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a rea[586]*586sonably founded hope that the process will reveal relevant evidence, it is a social cost rather than a benefit.” (Emphasis in original.) Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975).

Discovery thus should be confined to developing facts underlying a plaintiff’s claim or claims and not used as a “fishing expedition” to discover what else may be amiss or to develop wholly new claims unrelated to what is averred in the complaint. Cf. McFarland v. Memorex Corp., 493 F.Supp. 631, 639 (N.D.Calif.1980). The mere allegation of one specific claim of an alleged violation of the securities laws does not per se entitle a plaintiff or his counsel to roam through a defendant’s files at will.2

Following oral argument by counsel on April 20,1982, the Magistrate advised counsel that the concerns for overbreadth of the requests for production of documents and discovery abuse would be reassessed in light of the pleadings in the court file and their arguments. The Magistrate has now completed that reassessment and plaintiff’s motion to compel will be granted, in part, and denied in part as hereinafter set forth. Specifically, the defendant shall respond within thirty (30) days of this Order with document production for the time period of January 1, 1978 through June 30, 1980 to the following qualified and restricted requests for production of documents:

1. All correspondence between Gordon & Co. and any other person, including brokers, who purchased Options from Gordon & Co. under Gordon & Co.’s Limited Price Put and Call Options Program which in any way relates to or deals with commissions or fees to be paid with respect to purchases and sales of Gordon & Co. options or the securities underlying those options.

2. All correspondence between Gordon & Co. and any brokers dealing with' or relating to (a) the forwarding of prospectuses to brokers concerning Gordon & Co.’s Limited Price Put and Call Options Program, (b) advertising material related to Gordon & Co. options, (c) instructions or recommendations by Gordon & Co. as to how to inform potential customers of Gordon & Co.

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Cite This Page — Counsel Stack

Bluebook (online)
94 F.R.D. 584, 1982 U.S. Dist. LEXIS 15083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-gordon-co-cadc-1982.