United States v. International Business Machines Corp.

62 F.R.D. 507, 18 Fed. R. Serv. 2d 1060, 1974 U.S. Dist. LEXIS 8697
District Court, S.D. New York·Decided May 3, 1974·No. No. 69 Civ. 200 (DNE)·Published·Cited by 16 cases

Opinion

OPINION

EDELSTEIN, Chief Judge:

Pursuant to Pretrial Order No. 12 the parties in the above captioned action served subpoenas duces tecum and ad testificandum on ten1 competitors or former competitors of International Business Machines Corporation (IBM). Seven of the ten subpoenaed parties moved before this court for various forms of relief. In the main, three types of relief were requested: (1) advancement of costs for complying with the duces tecum directive of the IBM subpoena, Fed.R.Civ.P. 45(b)(2); (2) quashing or modifying certain portions of the IBM document demand, Fed.R. Civ.P. 45(b)(1); and (3) applications for protective orders, Fed.R.Civ.P. 26(c). The specific requests of the seven nonparty witnesses were as follows:

1. Burroughs Corporation (Burroughs)
(a) Moves to condition compliance with IBM’s document demand upon the advancement of costs by IBM.
(b) Moves for a supplementary protective order.
2. Digital Equipment Corporation (DEC)
Moves for supplementary protective order.
3. Honeywell, Inc. (Honeywell)
(a) Moves to quash paragraphs 8, 14, 15 and 16 of the IBM document demand.
(b) Moves for a supplementary protective order.
(e) Moves to make documents responsive to certain items in the joint subpoena subject to its proposed protective order.
4. The National Cash Register Company (NCR)
[509]*509Moves for a supplementary protective order.
5. RCA Corporation (RCA)
(a) Moves for the advancement of costs by both parties.
(b) Moves to quash paragraphs 6, 14, 15 and 16 of the IBM document schedule.
6. Sperry Rand Corporation (Sperry Rand)
(a) Moves to quash paragraphs 8, 14, 15 and 16 of the IBM document demand; in the alternative it moves to condition denial of its motion to quash upon IBM’s advancing to Sperry Rand its reasonable costs of producing the material sought by paragraphs 8, 14, 15 and 16 of the IBM subpoena.
(b) Moves to require IBM to advance to Sperry Rand its reasonable costs of complying with the IBM subpoena, if and to the extent that such costs are awarded any other person responding to the IBM subpoena.
(c) Moves for a supplementary protective order.
(d) Moves to stay enforcement of the IBM subpoena against Sperry Rand pending disposition of Sperry Rand’s motion.
7. Xerox Corporation (Xerox)
(a) Moves to quash paragraphs 14, 15 and 16 of the Schedule of Documents demanded by IBM.
(b) Moves for a supplementary protective order.
(c) Move to stay enforcement of paragraphs 14, 15 and 16 of the IBM subpoena pending disposition of its motion for a protective order.

Costs

All motions for the advancement of costs are denied. The advancement of costs as a condition for the denial. of a motion to quash is committed to the sound discretion of the court. See, e. g., Blank v. Talley Industries, Inc., 54 F.R.D. 627 (S.D.N.Y.1972). In an earlier opinion on this question the court exercised its discretion by denying an application for costs. United States v. International Business Machines Corp., D.C., 62 F.R.D. 526 (1974) (memorandum opinion on the application of Mathematica, Inc.). At that time the court stated:

Pretrial Order No. 12 contemplates that the parties will take approximately 2400 depositions of companies in the electronic data processing industry. This massive discovery process is intended to provide economic data and other information essential to the proper resolution of this action, which has been characterized as one of the most important and complex antitrust cases in history. Undoubtedly, each of the nonparty deponents will incur some expenses in complying with the subpoenas. . . . Although Math-ematiea asserts that it has no interest in this litigation, it seems clear to this court that all citizens have an interest in the correct resolution of this action. This is not an action between private litigants seeking to resolve personal grievances. It is a major antitrust suit brought on behalf of all the people.

Id. at 528-529. Subsequently, this court has denied .similar motions by many other nonparty witnesses.2 The motions currently before the court differ from those already decided only in degree, not in kind. The only distinction between these movants and the prior applications [510]*510for costs by nonparty deponents is that these movants are larger and the subpoenas served on them are more comprehensive. Consequently, the costs for complying are necessarily greater. But this distinction is hardly a basis for treating the movants currently before the court differently from the previous applicants. In this regard, the observation made by Judge Weinfeld almost twenty-two years ago should be noted:

Inconvenience is relative to size. Any witness who is subpoenaed suffers inconvenience. An individual operating a small business, for example, or a corporation operated by a sole shareholder, may suffer, in like circumstances, more inconvenience than [a major corporation] with thousands of employees. But this inconvenience, whether suffered by witnesses, grand jurors, or jurors, is part of the price we pay to secure . the enforcement of our laws.

Application of Radio Corporation of America, 13 F.R.D. 167, 172 (S.D.N.Y. 1952). Although the costs of complying with the subpoena are larger for the movants currently before the court, these movants have greater resources to bear these costs.

Additionally, as this court said in denying Mathematical application for costs, “it cannot be overlooked that the movant and other members of the electronic data processing industry must necessarily be most affected by the final judgment in this case.” United States v. International Business Machines Corp., at 529, 69 Civ. 200 (S.D.N.Y., Feb. 4, 1974). RCA asserts that this rationale is inapplicable to it because it is no longer in the general purpose computer business. Even assuming arguendo that RCA is not in the electronic data processing industry at all,3 this would not excuse it from providing relevant evidence. It is a firmly rooted principle in our Anglo-American jurisprudence that, unless specially privileged, every individual must give testimony when properly summoned. 8 J.Wigmore, Evidence §§ 2190-2192. This principle flows from the maxim that the public has a right to “every man’s evidence.” Id. § 2192. Whether costs are allowed for this evidence is governed by Fed.R. Civ.P.

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United States v. International Business Machines Corp., 62 F.R.D. 507, 18 Fed. R. Serv. 2d 1060, 1974 U.S. Dist. LEXIS 8697 (S.D.N.Y. 1974).

62 F.R.D. 507 (United States v. International Business Machines Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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