Mallinckrodt Chemical Works v. Goldman, Sachs & Co.

58 F.R.D. 348, 16 Fed. R. Serv. 2d 1517, 1973 U.S. Dist. LEXIS 14824
CourtDistrict Court, S.D. New York
DecidedFebruary 22, 1973
DocketNos. 71 Civ. 1437, 71 Civ. 2438
StatusPublished
Cited by49 cases

This text of 58 F.R.D. 348 (Mallinckrodt Chemical Works v. Goldman, Sachs & 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
Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 16 Fed. R. Serv. 2d 1517, 1973 U.S. Dist. LEXIS 14824 (S.D.N.Y. 1973).

Opinion

EDELSTEIN, Chief Judge.

OPINION

Plaintiffs have moved pursuant to Rule 37 of the Federal Rules of Civil Procedure for an order compelling defendant, Dun & Bradstreet, Inc. (Dun & Bradstreet or D&B) to produce for plaintiffs’ inspection “all documents submitted to the Securities and Exchange Commission (SEC) in connection with the SEC’s investigation of the financial collapse of the Penn Central Company.” In addition, plaintiffs seek expenses, in-[350]*350eluding attorney's fees, incurred in obtaining this order.

This motion arose during discovery proceedings in the Penn Central Commercial Paper cases. These cases were consolidated for pretrial purposes before this court pursuant to 28 U.S.C. § 1407 (1970) by the Judicial Panel on Multidistrict Litigation (MDL-56A). The principal defendant is Goldman, Sachs & Co. (Goldman Sachs). It sold approximately eighty million dollars ($80,000,-000) of Penn Central Transportation Company (PCTC) commercial paper to the public on various dates between November 1969 and May 1970. Approximately sixty-three entities (institutions, individuals and trustees) held outstanding PCTC paper on June 21, 1970, the date on which the issuer filed a petition for reorganization under Section 77 of the Bankruptcy Act, 11 U.S.C. § 205 (1970). This outstanding commercial paper was not redeemed or otherwise paid at maturity. Subsequently, various purchasers brought suit against Goldman Sachs grounded on violations of the anti-fraud provisions of the Federal Securities Acts.1 2A few plaintiffs, including movants, also named Dun & Bradstreet as a defendant.

Dun & Bradstreet, a corporation organized under the laws of Delaware, provides a variety of financial services, including the rating of commercial paper offered for sale to the public. At all times relevant to this action defendant D&B rated commercial paper through its wholly-owned subsidiary, National Credit Office (NCO).2 The promissory notes of PCTC were consistently assigned a “prime” rating by NCO. Plaintiffs contend, inter alia, that the commercial paper of Penn Central was not prime, “either by the standards of the industry or by the standards set by D&B itself.” Plaintiffs claim they were damaged by their reliance on the NCO rating. Furthermore, plaintiffs allege numerous material misrepresentations by D&B on which they likewise relied to their detriment. Plaintiffs’ causes of action against D&B are substantially similar to those described above with respect to Goldman Sachs.3

In connection with its investigation into the financial plight of Penn Central, the SEC subpoenaed certain documents from defendant D&B. In addition, several of defendants’ employees were called to testify at hearings held by the Commission. The SEC investiga[351]*351tion culminated in a voluminous report entitled “Staff Study of the Financial Collapse of the Penn Central Company.” One section of the report is devoted to the role played by NCO in rating Penn Central commercial paper.4

After defendant refused plaintiffs’ request for production of the documents which it had submitted to the SEC, plaintiff moved to compel discovery. At the request of plaintiffs, without objection by defendant, this court agreed to take the instant motion on submission without oral argument.5

Briefly stated, the issue is whether plaintiffs’ demand for production comports with the requirements set out in the applicable discovery provisions of the Federal Rules of Civil Procedure.

Plaintiffs assert that in the context of this litigation “all documents relating to defendant’s operations and procedures in connection with the rating of commercial paper are clearly relevant and are ‘reasonably calculated to lead to the discovery of admissible evidence.’ ” Plaintiffs contend that this argument satisfies the general requirement of relevance under Fed.R.Civ.P. 26(b) (l).6

In support of their position, plaintiffs cite Zients v. LaMorte, 319 F.Supp. 956 (S.D.N.Y.1970), mandamus denied, LaMorte v. Mansfield, 438 F.2d 448 (2d Cir. 1971) as authority mandating production of the documents in question. Plaintiffs reliance on LaMorte is misplaced. In that case shareholders brought suit against the officers and directors of a corporation charging them with violations of the federal securities laws. The president of the corporation testified at a non-public hearing conducted by the SEC. During discovery it was disclosed that defendant obtained a transcript of his testimony before the SEC. It was also established that the subject matter of the SEC investigation was directly related to the issues in the private lawsuit. 319 F.Supp. at 957. Plaintiffs sought to obtain the transcript “for the purpose of verifying or impeaching the deposition testimony given” by LaMorte. Defendant objected on the ground that SEC regulations prohibited the disclosure of non-public records of the Commission.7 Defendant, however, was allowed to obtain a transcript of his testimony without any prohibition against its disclosure to third parties. Concluding that the privilege of confidentiality was the SEC’s rather than the witness’, the district court ordered defendant to produce the [352]*352transcript.8 In denying defendant’s petition for a writ of mandamus, the Court of Appeals came to the same conclusion.9

In the case at bar there is no issue of SEC confidentiality. The documents in question belong to defendant and were in its possession during the pendency of this motion. If plaintiffs’ demand for production satisfies the requirements of the Federal Rules the documents must be produced. That the documents were submitted to the SEC is wholly irrelevant to this motion except as discussed below.

Defendant contends that plaintiffs’ demand for these documents grounded on defendant’s production to the SEC is insupportable. Defendant is correct in this assertion. The production of documents to an agency or other investigative body does not automatically make those documents discoverable in a separate proceeding. Defendant's citation to United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir. 1960) lends support to this conclusion.10 Although that case concerned documents submitted to a grand jury, which were sought by the Interstate Commerce Commission (ICC) in a separate investigation, it is analogous to the situation presented by the instant motion. The ICC sought financial records of defendant held by the Department of Justice pursuant to a federal grand jury subpoena

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Bluebook (online)
58 F.R.D. 348, 16 Fed. R. Serv. 2d 1517, 1973 U.S. Dist. LEXIS 14824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallinckrodt-chemical-works-v-goldman-sachs-co-nysd-1973.