Fisher v. Harris, Upham & Co.

61 F.R.D. 447, 17 Fed. R. Serv. 2d 1487, 1973 U.S. Dist. LEXIS 10898
CourtDistrict Court, S.D. New York
DecidedNovember 28, 1973
DocketNo. 69 Civ. 3312-WK
StatusPublished
Cited by9 cases

This text of 61 F.R.D. 447 (Fisher v. Harris, Upham & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 17 Fed. R. Serv. 2d 1487, 1973 U.S. Dist. LEXIS 10898 (S.D.N.Y. 1973).

Opinion

OPINION

MaeMAHON, District Judge.

Plaintiff, Harold Fisher, moves to confirm and modify the report of Special Master John J. Galgay,1 appointed by the court pursuant to Rule 53(a), Fed.R.Civ.P.,2 to supervise discovery proceedings in this action brought under § 10(b) of the Securities Act of 1934. The modification sought by plaintiff would impose sanctions of $15,000 on defendant, strike defendant’s answer and grant judgment to plaintiff. Defendant cross-moves, seeking vacation of the Special Master’s report, a protective order terminating discovery and personal assessment of costs on plaintiff’s attorney, I. Alan Harris. We confirm the Special Master’s report in full.

The Special Master was appointed, upon consent of the parties, on February 18, 1972 due to the parties’ inability to conduct discovery proceedings by themselves, as contemplated by the Federal Rules of Civil Procedure, without constant disagreement, interruption, delay and consequent court intervention. The court granted the Special Master broad powers under Rule 53(c), Fed.R.Civ.P.,3 subject to review by this court upon application of any party, to supervise discovery, including power to rule on all [449]*449motions relating to discovery; rule on objections at depositions or interrogatories; direct parties or witnesses to answer unobjectionable questions; order the production of documents and records; and “take all measures necessary or proper for the efficient performance of his duties.” 4.

The court is aware of the teaching of Rule 53(b) 5 and LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), which require a showing of exceptional circumstances before a Special Master may be appointed. Here, however, the parties consented to such an appointment and exceptional circumstances were present as well.

The conduct of the parties prior to the Special Master’s appointment demonstrated that they were unable to proceed with discovery without impartial supervision. In earlier discovery proceedings, Magistrate Jacobs had found it necessary to recommend imposing a sanction of $250 on defendant for its failure to make proper answers to interrogatories.6 Judge Frankel agreed and imposed the sanction.

The depositions predating the Master’s supervision are filled with irksome quibbling, needless interruptions, frivolous objections and baseless directions not to answer by counsel for both parties. Extensive colloquies and arguments among counsel caused substantial delays in the testimony. The spirit of cooperation mandated by the federal rules was sorely lacking. Discovery, thus frustrated, the parties once again found it necessary to apply to the court for relief, and following argument and consultation with counsel, all agreed that the best course would be for the court to appoint a Special Master with full power to preside over all further discovery proceedings.

Numerous cases approve the appointment of a Special Master to supervise discovery proceedings where the issues are complicated or the parties recalcitrant. First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 245 F.2d 613 (8th Cir.), cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957), cited in Bourgeois v. El Paso Natural Gas Co., 257 F.2d 807 (2d Cir. 1958); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y.1965); Hirsch v. Glidden Co., 79 F.Supp. 729 (S.D.N.Y.1948); United Artists v. Grinieff, 17 Fed.Rules Serv. 30b. 42, Case 1 (S.D.N.Y., July 3, 1952); cf. Olson Transp. Co. v. Socony-Vacuum Oil Co., 7 F.R.D. 134 (E.D.Wis.1944); Stentor Elec. Mfg. Co. v. Klaxon Co., 28 F.Supp. 665 (D.Del.1939).7

Throughout the Special Master’s tenure, plaintiff asserted that defendant had failed to comply fully with an order for production of documents which had earlier been granted by Judge Gurfein.8 This failure, plaintiff claimed, was part of a deliberate plan to frustrate discovery. Defendant’s production of doeu[450]*450ments under Judge Gurfein’s order was strung out piecemeal during the depositions supervised by the Special Master. This compelled the Special Master to question defense counsel as to the thoroughness of the document search which had purportedly been conducted by defendant in response to the command of the court. Defense counsel excused his failure to produce all of the documents at one time by shifting the blame to an unskilled search staff and asserting that the records had been searched three times.

On March 28, 1972, defendant discovered the Computerized Wire Service Unit (“CWS Unit”), a print-out of all telex messages passing between Harris-Upham’s headquarters and its seventy-two branch offices. When the existence of the CWS Unit was disclosed to the Special Master, he ordered it searched for twenty dates to be supplied by plaintiff. After plaintiff refused to supply the dates, the Special Master, on February 23, 1973, selected fifty-seven dates and ordered defendant to search the CWS Unit for messages relating to Bartep stock. One hundred and thirty telex messages were produced as a result of the search, only twenty-three of which the Special Master found had previously been produced.

Special Master Galgay concluded:
“I am convinced that the defendant violated the letter as well as the spirit of the Federal Rules of Civil Procedure governing discovery. Magistrate Jacobs and Judge Frankel thought similarly when the sanction of $250 was imposed against the defendant. The manner of piecemeal production made by defendant’s counsel during the course of depositions and hearings persuade me that their original search was not as diligent as that required by the Rules. The defendant’s discovery of the Computerized Wire Service Unit on March 28, 1972, over four years after the filing of the complaint and approximately two years after the filing of the rule 34 motion cast real doubt on the adequacy of its search.” 9

The court is bound to “accept the master’s findings of fact unless clearly erroneous.” Rule 53(e)(2), Fed.R.Civ.P.; Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946); National Labor Relations Bd. v. Remington Rand, Inc., 130 F.2d 919 (2d Cir. 1942); Helene Curtis Industries v. Sales Affiliates, 121 F.Supp. 490 (S.D.N.Y.1954), aff’d, 233 F.2d 148 (2d Cir.), cert. denied, 352 U.S. 879, 77 S.Ct. 101, 1 L.Ed.2d 80 (1956).

Defendant apparently bases its objections to the Special Master’s findings on its analysis of the documents produced pursuant to the Special Master’s order of February 23, 1973.

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61 F.R.D. 447, 17 Fed. R. Serv. 2d 1487, 1973 U.S. Dist. LEXIS 10898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-harris-upham-co-nysd-1973.