Wade v. Singer Co.

130 F.R.D. 89, 1990 U.S. Dist. LEXIS 3348, 1990 WL 33679
CourtDistrict Court, N.D. Illinois
DecidedMarch 27, 1990
DocketNo. 90 C 1406
StatusPublished
Cited by2 cases

This text of 130 F.R.D. 89 (Wade v. Singer Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wade v. Singer Co., 130 F.R.D. 89, 1990 U.S. Dist. LEXIS 3348, 1990 WL 33679 (N.D. Ill. 1990).

Opinion

MEMORANDUM OPINION

ELAINE E. BUCKLO, United States Magistrate.

The Secretary of Labor, Elizabeth Dole, has filed a motion pursuant to Rule 26, Fed.R.Civ.P., to quash a subpoena issued by the United States District Court for the Northern District of Illinois requiring Gordon Carlson, Regional Director of the Job Corps of the Department of Labor in Chicago, Illinois to testify at a deposition in a case in the Eastern District of Michigan that is scheduled to go to trial on March 26, 1990. In support of her motion, the Secretary represents that “any information which Mr. Carlson may have with respect to this matter is contained in the agency’s file,” which she says is already in the possession of counsel seeking the deposition; that such documents are admissible in evidence without Mr. Carlson’s testimony; and that pursuant to 29 C.F.R. § 2.20, et seq., the Department of Labor “has made a valid determination ... that Mr. Carlson shall not appear and testify.”

The Singer Company, which sought the subpoena and seeks Mr. Carlson’s deposition testimony, in its response, agrees that it has whatever documents it wants and that they are admissible in evidence. It says, however, that it still needs Mr. Carlson’s testimony. Singer also represents that, contrary to the Secretary’s statement, it did, as required by 29 C.F.R. § 2.20, submit a short summary of the requested testimony, and that the Secretary knows from that summary that Mr. Carlson’s testimony is in fact needed. Exhibit 2, attached to the Singer Company’s Response to the Secretary of Labor’s Motion to Quash Subpoena, appears to confirm Singer’s representation that it submitted a summary. It is a letter addressed Karen L. Mansfield, the attorney representing the Department of Labor in this proceeding, dated February 26, 1990, that explains why Mr. Carlson’s testimony is needed and summarizes the expected testimony.

The Department of Labor has not filed a reply to Singer’s response. The only information I have available to me from either party regarding the nature of the underlying action in Michigan is contained in the February 26, 1990 letter referred to above. According to statements contained in the letter, in the spring of 1988, the Regional Director of the Job Corps conducted an annual review of the Singer’s Detroit Job Corps Center. That review found deficiencies and violations that were reported in the “Annual Review.” In conversations regarding that review, Mr. Carlson supposedly told Singer officials that he had “ ‘grave concerns’ regarding the management of the Detroit Job Corps Center.” Exhibit 2 at 2. Singer (apparently its Job Corps Center is called “Career Systems” as referred to in the letter) “shared the Department of Labor’s concerns regarding the Detroit Job Corps Center” and accordingly fired its director, the plaintiff in this action, William Wade. Subsequently, Mr. Wade sued Singer under Michigan law, alleging that he was discharged without good cause. Singer states that it needs Mr. Carlson’s testimony to show that the Department of Labor considers the Annual Review an important factor in deciding whether to award an “option year” to the contractor1 as well as “the importance of [91]*91‘Center management’ in evaluating Center performance and the suitability of a contractor for being awarded an ‘option year contract.’ ” Id.

The Department of Labor has cited numerous cases in support of its position that Mr. Carlson should not be required to comply with this subpoena. Many of them involve issues such as whether a federal court has jurisdiction to require compliance when the subpoena in question issued out of a state court and other tangential issues. Others involve the question whether a subpoenaed official can be required to produce documents in the face of an order by a superior, in accordance with regulations, not to produce them.2 In these cases, the courts have agreed that such regulations are proper housekeeping procedures and that a supervisor can validly decide that decisions about releasing a department’s documents are properly addressed to the supervisor. E.g., United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Saunders v. Great Western Sugar Company, 396 F.2d 794 (10th Cir.1968), Smith v. C.R.C. Builders Co., Inc., 626 F.Supp. 12 (D.Colo.1983). The Department of Labor’s position in this case has, however, been upheld in several decisions. Unfortunately, in most, the court has merely recited prior authority such as Touhy without noting that the Supreme Court expressly withheld judgment on anything other than the narrow issue before it, and later similar cases or cases in which the court disposed of the issue on procedural grounds. E.g., Hotel Employees-Hotel Association Pension Fund v. Timperio, 622 F.Supp. 606 (D.C. Fla.1985); Thornton v. Continental Grain Company and Tech-Air, Inc., No. 83-3009 (S.D.Ill.1985) (unpublished). The issue is discussed more fully in Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989). That case also involved the problem of a subpoena issued in a state court proceeding. The court also discussed the rationale for regulations such as those in issue here, however, noting that federal government agencies have “a valid and compelling interest” in keeping employees “free to conduct their official business without the distractions of testifying in private civil actions in which the government has no genuine interest.” Id. at 71. Similar views were stated by the court in Reynolds Metals Co. v. Crowther, 572 F.Supp. 288 (D.Mass.1982). That case also involved state court subpoenas on federal officials and the court concluded it did not have jurisdiction to enforce the subpoenas. It stated, in addition, that the “policy behind prohibition of testimony is to conserve governmental involvement in controversial matters unrelated to official business.” Id. at 290.

Because of the nature of the programs it administers and enforces, OSHA is particularly vulnerable to the demands of private parties seeking information acquired as a result of official investigations concerning industrial accidents and other mishaps in the workplace. If OSHA employees were routinely permitted to testify in private civil suits, significant loss of manpower hours would predictably result____ Id.

The only decision I have found, apart from Touhy, that has addressed the issue of whether governmental regulations such as those relied on here can always shield federal employees from having to testify in [92]*92actions in which the federal government is not a party is Saunders v. Great Western Sugar Company, supra, 396 F.2d at 794. The court in Saunders had before it a subpoena duces tecum and agreed that regulations could force the party seeking documents to seek disclosure through the proper (higher) official. The court noted, however, that both parties in the underlying suit agreed that the requested information was relevant and that, accordingly, “some remedy must be afforded” unless a governmental privilege against disclosure existed. Id. at 795.

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Bluebook (online)
130 F.R.D. 89, 1990 U.S. Dist. LEXIS 3348, 1990 WL 33679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-singer-co-ilnd-1990.