In the Matter of Surety Association of America, Glendale Federal Savings and Loan Association v. Republic Insurance Company

388 F.2d 412, 11 Fed. R. Serv. 2d 976, 1967 U.S. App. LEXIS 4236
CourtCourt of Appeals for the Second Circuit
DecidedDecember 8, 1967
Docket31256_1
StatusPublished
Cited by37 cases

This text of 388 F.2d 412 (In the Matter of Surety Association of America, Glendale Federal Savings and Loan Association v. Republic Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Surety Association of America, Glendale Federal Savings and Loan Association v. Republic Insurance Company, 388 F.2d 412, 11 Fed. R. Serv. 2d 976, 1967 U.S. App. LEXIS 4236 (2d Cir. 1967).

Opinions

MOORE, Circuit Judge:

Appellants are savings and loan associations which are plaintiffs in fourteen lawsuits now pending in a United States district court in the Northern District of California. Appellants suffered losses in excess of four million dollars in the aggregate as a result of their having placed deposits in the now defunct San Francisco National Bank. Defendants in the California lawsuits are insurance companies which, it is alleged, are liable for this loss under the terms of insurance policies issued by them to the appellants. The policies are of a standard form, conmmonly called “savings and loan blanket bonds” or “Form 22 bonds.”

In one of the cases to which this matter is auxiliary, Union Federal Savings and Loan Ass’n of Pittsfield, Massachusetts v. Transamerica Ins. Co., Civil No. 44549, the defendant moved for summary judgment on the ground that a “deposit” is a “loan” as the word “loan” is used in an exclusion clause of the Form 22 bond. In denying the motion, the District Judge indicated that the term “loan” may be latently ambiguous and that there was presented a genuine issue of material fact relating to the intent of the parties and the circumstances surrounding the execution of the contracts. In response to this ruling, appellants served interrogatories upon the defendants relating to the meaning of the terms and provisions of the Form 22 bond. One defendant, Hartford Accident & Indemnity Company, stated in answer to these interrogatories that appellee, the Surety Association of America, a trade association of insurance companies located in New York, was best qualified to answer these interrogatories. It is the Surety Association that formulates standardized insurance policies and provides interpretations of these policies. [414]*414Subsequently, appellants noticed the deposition of John F. Fitzgerald, Secretary of the Surety Association, to be taken in New York City and Mr. Fitzgerald was served with a subpoena duces tecum, returnable on December 19, 1966. The subpoena called for the production of files, records, correspondence and documents relating to the adoption of thirteen different standardized bonds including Form 22, for other information relating to interpretations of those bonds, and for communications between the Surety Association and several of the defendants in the California litigation. The deposition was later rescheduled and the subpoena duces tecum made returnable on January 23, 1967.

At his deposition, Fitzgerald produced only the documents marked Exhibits 1— 14A of this appeal. These documents included information relating to the Form 22 bond and correspondence between the Surety Association and the United States Savings & Loan League (a trade association of savings and loan associations) concerning interpretations of the Form 22 bond. Fitzgerald refused to produce the other documents requested, including communications between the Surety Association and the defendants in the California litigation and minutes of meetings at which formulation of the clauses of the Form 22 bond was discussed.

Because of Fitzgerald’s refusal to produce the subpoenaed documents, appellants moved for an order directing the production of the documents described in the subpoena duces tecum and requiring the Surety Association to pay the reasonable expenses incurred in obtaining such order. Appellee cross-moved to quash or modify the subpoena on the dual grounds of privilege and lack of relevancy. Judge Ryan did not rule on the question of privilege, but held that the documents, other than those already produced, were not relevant. He, therefore, granted ap-pellee’s motion to limit the subpoena to those documents already produced and denied appellant’s requested order.

The appealability of this type order was recently sustained in Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967).

At the outset we dismiss appellee’s claim that the information requested in the subpoena is subject to an “executive” or “governmental” privilege. Appellee’s self-characterization as a “governmental agency” is based on the rather tenuous assertion that the Surety Association “functions as an arm or alter ego of the [New York] Superintendent of Insurance’.’ (appellee’s brief, p. 21). But if every organization which is somewhat controlled or constrained by state or federal regulations were to claim to be a governmental agency, it is difficult to suggest who would not qualify for such a status. Even within the government itself, the privilege is severely limited. United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953). There is no authority for extending the privilege as requested here.

The only restriction placed upon the matters which may be gone into upon discovery examinations is that they be relevant. Rule 26(b), Fed.R.Civ.Pro. Relevancy, in this context, is tested by a rather liberal standard. “Thus it is relevancy to the subject matter which is the test and subject matter is broader than the precise issues presented by the pleadings.” Kaiser-Frazer Corp. v. Otis & Co., 11 F.R.D. 50, 53 (S.D.N.Y.1951). But, “practical considerations dictate that the parties should not be permitted to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.” Broadway & Ninety-Sixth St. Realty Co. v. Loew’s Inc., 21 F.R.D. 347, 352 (S.D.N.Y. 1958).

On the question of relevancy, however, the trial judge has considerable discretion and his order should not be disturbed unless there has been an abuse of discretion or when the action taken “was improvident and affected the substantial rights of the parties.” Carter v. Baltimore & O. R. Co., 80 U.S.App. [415]*415D.C. 257, 152 F.2d 129, 131 (1945). See also Waterman, An Appellate Judge’s Approach When Reviewing District Court Sanctions Imposed for the Purpose of Insuring Compliance with Pretrial Orders, 29 F.E.D. 420 (1962).

Appellants argue that the district court, acting as an auxiliary court, abused its discretion by even considering the question of relevancy when the primary court had ordered the production of the documents. As was noted in Dowagiac Mfg. Co. v. Lochren, 143 F. 211, 215 (8th Cir. 1906):

“ * * * it js not the duty of an auxiliary court or judge, within whose jurisdiction testimony is being taken in a suit pending in the court of another district, to consider or determine the competency, materiality, or relevancy of the evidence which one of the parties seeks to elicit. It is the duty of such a court or judge to compel the production of the evidence, although the judge deems it incompetent or immaterial, unless the witness or the evidence is privileged, or it clearly and affirmatively appears that the evidence cannot possibly be competent, material, or relevant, and that it would be an abuse of the process of the court to compel its production.”

See Perkins v. Endicott Johnson Corp., 128 F.2d 208, 214 (2d Cir. 1942). The difficulty with this rule is that it may subject a non-party witness outside the jurisdiction of the primary court to possibly greater hardship than if he were within the primary court’s jurisdiction.

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Bluebook (online)
388 F.2d 412, 11 Fed. R. Serv. 2d 976, 1967 U.S. App. LEXIS 4236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-surety-association-of-america-glendale-federal-savings-ca2-1967.