United States v. International Business Machines Corp.

S.D. New York

United States v. International Business Machines Corp.

76 F.R.D. 97, 1977 U.S. Dist. LEXIS 14605

District Court, S.D. New York·Decided August 5, 1977·No. No. 69 Civ. 200 (DNE)·Published·Cited by 3 cases

Opinion

MEMORANDUM AND ORDER

EDELSTEIN, Chief Judge:

The controversy giving rise to this memorandum and order is not a new one either to the court or to the parties to this litigation. On two prior occasions, September 19, 1975 and November 30, 1976, this court ordered the production of certain information by defendant, International Business Machines Corporation (IBM) to plaintiff, United States, concerning IBM’s Leased Base Machine Inventory (LBMI) file and Purchase Base Machine Inventory (PBMI) file. By the present motion, which again concerns IBM’s LBMI and PBMI files, plaintiff seeks an order “(i) requiring the defendant to produce specified material and information and (ii) appointing an Examiner pursuant to Rule 53 of the Federal Rules of Civil Procedure to report to the Court what material and information the defendant possesses which the plaintiff seeks pursuant to the Court’s September 19,1975 and November 30, 1976 Orders.”

Despite the court’s expressed intention in its November 30,1976 order that the “list of items to be produced be construed broadly,” plaintiff contends that defendant has “com-bin[ed] the highly technical nature of the production with a narrow interpretation of the Court’s September 19,1975 and November 30,1976 Orders to withhold information necessary for the plaintiff to obtain meaningful systems statistics from the LBMI and PBMI files.” Plaintiff’s Memorandum in Support of the instant motion at 3. Based on an evaluation of defendant’s production to plaintiff as of the filing of plaintiff’s motion, plaintiff concludes that defendant “has not produced important programs, documentation and other information” requested by plaintiff pursuant to the November 30, 1976 order.

[98]*98Plaintiff further argues that because of defendant’s recalcitrance and because of the complex and highly technical nature of the information sought, there exist sufficient “exceptional conditions” to warrant the appointment of an Examiner pursuant to Fed. R. Civ. P. 53.

Defendant vigorously opposes both further production of information to plaintiff and the appointment of an Examiner. Defendant asserts that it has produced all responsive information which was called for by the court’s prior orders. Suggesting that plaintiff has not yet even studied the production it has already received, defendant concludes that it is “hardly sensible” to undertake new proceedings for further information which in defendant’s view go well beyond the court’s November 30, 1976, order.

It is defendant’s contention, in fact, that “virtually all of what plaintiff now seeks is unrelated to the LBMI and PBMI programming which have already been produced.” Defendant’s Memorandum in Opposition to the instant motion at 8. Moreover, certain of the information now sought by plaintiff was earlier offered to plaintiff but rejected. Defendant suggests that the reason for plaintiff’s seeking such discovery now has to do with the fact that plaintiff’s new trial staff has different ideas of what discovery is needed.

As noted earlier, the court has twice before become embroiled in the parties’ dispute concerning IBM’s LBMI and PBMI files and has twice before ordered production intended to resolve the matter. Faced with the task for a third time of attempting to bring about a final resolution of the parties’ now familiar controversy, the court has determined that plaintiff is entitled to further relief.

While there is no question that defendant has undertaken to produce information to plaintiff pursuant to the court’s orders of September 19,1975 and November 30,1976, the court is not persuaded that the production that has been forthcoming from IBM comports with the spirit and intent of those orders. It should have been clear to defendant by this late date the extent of production which the court intended it to undertake.

The position in which the court has been placed cannot be tolerated. The court cannot allow defendant’s conduct to deprive plaintiff of information to which the court believes it is entitled.

Accordingly, defendant is ordered to make available to plaintiff for inspection and copying the information contained in Appendix A which is attached hereto.

In addition, while in its November 30,1976 order, the court stated that at that time the appointment of an “Auditor” was not warranted, the court has determined that the conduct of defendant and the highly technical and complex nature of the production which is the subject of the parties’ dispute, presently constitute “exceptional conditions” warranting the appointment of an Examiner pursuant to Fed. R. Civ. P. 53.

Within five days of the filing of this memorandum and order, plaintiff shall submit to the court a list of persons qualified to undertake the duties set forth below from amongst whom the court may select an Examiner. Plaintiff shall provide the court with all pertinent information about each of those persons sufficient to aid the court in determining whom to appoint as Examiner.

DUTIES AND POWERS OF THE EXAMINER:

The Examiner appointed pursuant to this memorandum and order shall have the duty of reporting to the court with respect to what tapes, other files, programs, documentation, and other information defendant possesses, and whether defendant has produced such material, which will enable plaintiff to determine the following information, aggregated as of year-end for the years 1960 through 1974:

(1) For each system type, by system type, included in the PBMI and/or LBMI files:

(a) the number of systems (units) of each such system type,

[99]*99(b) the number of such systems with new CPU’s which was entered into the LBMI and/or the PBMI, since the prior year-end,

(c) the value of the systems of each such system type in “points” in (l)(a) and (l)(b),

(d) the value of the systems of each such system type in purchase value in (l)(a) and (l)(b).

(2) For any product that is included in the LBMI or the PBMI, both for each model or group of models or for all models as a group:

(a) the number of units of each such product,

(b) the “point” value of those units of each such product,

(c) the purchase value of those units of each such product,

(d) the number of units of each such product associated with each model type of CPU (e. g., 2030, 2040, 2050, 3135, 3145, 3158),

(e) for each aggregate in (2)(d) the aggregate “point” value of those units,

(f) for each aggregate in (2)(d) the aggregate purchase value for those units.

(3) For each such product in subpara-graph (2):

(a) the number of new units which were entered into the LBMI and/or the PBMI, since the prior year-end figures had been aggregated,

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