In re Wirebound Boxes Antitrust Litigation

129 F.R.D. 534, 1990 WL 17410
CourtDistrict Court, D. Minnesota
DecidedFebruary 26, 1990
DocketMaster File No. MDL-793
StatusPublished
Cited by3 cases

This text of 129 F.R.D. 534 (In re Wirebound Boxes Antitrust Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wirebound Boxes Antitrust Litigation, 129 F.R.D. 534, 1990 WL 17410 (mnd 1990).

Opinion

MEMORANDUM OPINION AND ORDER 19

DIANA E. MURPHY, District Judge.

Plaintiffs have moved the court to compel responses by various defendants to the First Set of Interrogatories on Behalf of All Plaintiffs and to the First Set of Document Requests on Behalf of All Plaintiffs, initially served in June, 1989. Upon completion of the Local Rule 4(E) process, the remaining disputes are presented to the court by plaintiffs’ motion:

1. The production of a “privilege log” identifying the documents withheld on [536]*536privilege grounds by defendants General Box Co., Great American Box Co., Martin Bros. Container & Timber Products Corp., and Wisconsin Box Co.
2. The production of a detailed description of any investigation relating to any possible or alleged violations of antitrust policies by defendants General Box Co., Great American Box Co., Martin Bros. Container & Timber Products Corp., and Wisconsin Box Co.
3. The production of the names of any witnesses who gave testimony in connection with a grand jury investigation of the marketing of wirebound boxes and related information regarding that testimony by defendants General Box Co., Great American Box Co., Martin Bros. Container & Timber Products Corp., and Wisconsin Box Co.
4. The production of documents relating to the supply and demand of wirebound boxes by defendant Little Rock Crate & Basket Co.
5. The production of certain financial information by defendants Little Rock Crate & Basket Co., General Box Co., and Georgia Pacific Corp.

Defendant Little Rock has also moved for production of financial information by plaintiffs.

Defendants American Box Co., Altamil Corp., Chicago Mill & Lumber Co., General Box Co., Great American Box Co., Martin Bros. Container & Timber Products Corp., and Wisconsin Box Co. have filed a joint brief in opposition to the first three discovery requests listed above.1 Defendants’ primary objection to production of the requested information is based on the notion of grand jury secrecy, previously considered by this court in Order 14. In Order 14, this court ruled documents “created by a grand jury or at a grand jury’s request, such as subpoenas, transcripts, and lists of documents” were protected from discovery absent a showing of “particularized need” by plaintiffs. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-23, 99 S.Ct. 1667, 1674-75, 60 L.Ed.2d 156 (1979).

The court granted plaintiffs’ motion to compel the production of “all documents which [defendants] created independently from any government investigation and which they submitted to the United States Department of Justice or any grand jury in the course of an investigation of the wire-bound box industry,” reasoning that private actors such as the defendants herein may refuse to produce on grand jury secrecy grounds only those documents “which most clearly disclose the grand jury’s actions.”

Defendants now urge the court to refuse plaintiffs’ request for production of a standard “privilege log,” which includes a list and description of documents withheld on the grounds of privilege, as well as a statement of the factual basis for each claim of privilege, on the ground that the log “would give plaintiffs a blueprint of the entire grand jury investigation.” Defendants contend plaintiffs’ request for a privilege log (a) should be submitted pursuant to Fed.R.Crim.P. 6(e)(3)(D) to the United States District Court for the Northern District of Ohio where the grand jury was convened and (b) should in any event be denied because plaintiffs have failed to show any “particularized need” for the list.

Defendants misapprehend both the requirements of Fed.R.Crim.P. 6(e) and the appropriate standards for review of plaintiffs’ “privilege log” request. Rule 6(e)(3)(C)(i) permits disclosure of matters otherwise protected by the Rule when so directed by a court. Subdivision (D), cited by defendants, provides that a petition for disclosure should initially be filed in the district where the grand jury convened when disclosure pursuant to Rule 6(e)(3)(C)(i) is sought. Plaintiffs are not [537]*537seeking disclosure of materials in the possession of the government relating to the grand jury. They simply seek from defendants a list of documents withheld in connection with this civil antitrust case on grounds of attorney-client or other privilege. The provisions of Rule 6(e)(3)(D) thus do not apply to plaintiffs’ privilege log request, which is properly brought before this court for decision.2

Defendants’ contention that Order 14 precludes the discovery of the privilege log is also misplaced. Order 14 required the production of documents given by defendants to the grand jury. While defendants may legitimately withhold documents from plaintiffs on attorney-client privilege grounds, the burden of proving the privilege applies lies squarely with defendants. See generally 4 Moore’s Fed.Prac. & Pro. para. 26.60 at 26-188 (1989). A general allegation of privilege is insufficient to satisfy defendants’ burden: defendants must provide enough information to enable a court to determine the facts which support the claim of privilege. Id. See, e.g., Bulk Lift International, Inc. v. Flexcon & Systems, Inc., 122 F.R.D. 482, 490 (W.D.La. 1988); Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504, 510 (W.D.La.1988).

Defendants have failed to propose any alternative mechanism for testing their broad claims of privilege. Defendants’ position, in essence, is because there was a grand jury investigation they are entitled to rely simply upon a blanket claim of privilege. They have cited no authority in support of this proposition, while plaintiffs have cited cases which hold that “questions designed to elicit the existence or identity of documents or the parties to a communication do not call for protected information; only when the actual content of the communication is requested could the issue of privilege, or here secrecy, arise.” In re Shopping Carts Antitrust Litigation, 95 F.R.D. 299, 304 (S.D.N.Y.1982). See id. at 305-06.

Defendants have made the same broad privilege objection to producing information requested by plaintiffs regarding any internal investigations of possible antitrust violations. Defendants Martin Bros, and General Box have provided no information either by way of verified response or in the joint 4(E) statements filed with the court concerning whether any such investigation was even conducted. Defendants Wisconsin Box and Great American Box have also provided no verified responses to plaintiffs’ request, but have asserted in the 4(E) statements filed with the court that “any such investigation, if any, was conducted by counsel” (Great American Box) or that any investigation “was conducted by counsel in conjunction with the grand jury investigation” (Wisconsin Box).

This court agrees that the details of an investigation conducted by counsel, confined to private interviews with employees, and maintained in confidence are privileged.

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129 F.R.D. 534, 1990 WL 17410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wirebound-boxes-antitrust-litigation-mnd-1990.