Dart Industries Company, Inc., Movant-Appellee v. Westwood Chemical Company, Inc.

This is an appeal from the entry of an order quashing a subpoena duces tecum and denying any further discovery against appellee. The basic question presented on appeal is whether the district court abused its discretion by denying discovery.

The present proceeding is an outgrowth of a lawsuit filed by Westwood Chemical Company, Inc. (Westwood) against two of its former employees in the Southern District of New York. These employees allegedly conspired with Synthetic Products Company (Synthetic), a division of Dart Industries Company, Inc. (Dart), as well as Dart, to terminate a sales agency agreement that had been in force for some years between Westwood and Synthetic. In an effort to pursue discovery ancillary to the New York lawsuit, Westwood had a subpoena duces tecum issued from the Central District of California to one of Dart’s officers directing him to appear for deposition upon written questions and to produce documents. Upon Dart’s motion, the district court signed an order quashing the subpoena and denying any further discovery against Dart.

The district court’s order barring discovery is to be reviewed under an “abuse of discretion” standard. In Premium Service Corp.…

(dissenting):

I am now thoroughly convinced that my concurrence in the opinion filed in this appeal on the 17th day of January, 1980, was ill-advised and mistaken. I withdraw my concurrence and dissent from that opinion and from the vote of my colleagues to deny the petition for rehearing. My reasons, which I should have expressed earlier, are now set forth.

The general rule is that discovery orders, such as the one denying further discovery in the present case, are reviewed under an “abuse of discretion” standard. However,. this limited standard of review cannot afford any protection to a discovery order which is erroneous as a matter of law. People of State of California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215, 217 (9th Cir. 1975), cert. denied, 423 U.S. 868 , 96 S.Ct. 131 , 46 L.Ed.2d 97 . Since the district court’s order in the present case was based solely on its legal conclusions on the meaning of the agreement, its action is freely reviewable on appeal. Id. Not only does a fair reading of the agreement 1 reveal that it could not have been intended as Westwood’s release of its discovery rights against Dart, but also important policy considerations…

649 F.2d 646 DART INDUSTRIES COMPANY, INC., Movant-Appellee, v. WESTWOOD CHEMICAL COMPANY, INC., Respondent-Appellee. Nos. 77-3880, 78-1525. United States Court of Appeals, Ninth Circuit. April 2, 1980. 1 Arthur I. Winard, New York City, Lon M. Mickelson, Los Angeles, Cal., on briefs, for movant-appellee. 2 John G. Wigmore, Lawler, Felix & Hall, Los Angeles, Cal., on briefs, for respondent-appellee. 3 Appeal from the United States District Court for the Central District of California. 4 Before WALLACE and ANDERSON, Circuit Judges, and PALMIERI, * District Judge. PALMIERI, District Judge: 5 This is an appeal from the entry of an order quashing a subpoena duces tecum and denying any further discovery against appellee. The basic question presented on appeal is whether the district court abused its discretion by denying discovery. 6 The present proceeding is an outgrowth of a lawsuit filed by Westwood Chemical Company, Inc. (Westwood) against two of its former employees in the Southern District of New York. These employees allegedly conspired with Synthetic Products Company (Synthetic), a division of Dart Industries Company, Inc. (Dart), as well as Dart, to terminate a sales…