Falstaff Brewing Corporation, General Brewing Company S & P Company v. Miller Brewing Company, and Philip Morris, Incorporated

The Falstaff Brewing Corporation (Falstaff) has appealed from the order of the district court finding Falstaff in contempt for inter alia failing to return documents as required by a protective discovery order and imposing costs payable to Miller Brewing Co. (Miller) for the expenses incurred by Miller in an attempt to locate the missing items. We are asked to decide whether the facts support a finding of civil or criminal contempt. We conclude that they do not and reverse the contempt order. We affirm the award of expenses, including attorney’s fees, attributable to the vain quest for the lost files.

I. ISSUES ON APPEAL

Falstaff raises the following issues on this appeal:

One. If the contempt order is criminal in nature, the district court violated Falstaff’s right to due process by failing to accord Falstaff proper notice and a hearing as required by Rule 42 of the Federal Rules of Criminal Procedure. Further, we are told that the evidence fails to show that Falstaff was guilty of wilful disobedience of the district court’s order.

Two. If the order is construed as civil in nature, it is invalid as a compensatory contempt because the fine was not made payable to Miller, and…

concurring in part and dissenting in part:

I concur in the portion of the majority opinion affirming the award of expenses, including attorneys’ fees, incurred by Miller in its efforts to recover its missing confidential documents. I must dissent, however, from the portion of the majority’s *785 opinion which holds that the contempt order is criminal and reverses the district judge’s order as an abuse of discretion.

The primary difference between civil and criminal contempt is the intended effect of the court’s order. United States v. Powers, 629 F.2d 619, 626-27 (9th Cir.1980); In re Dinnan, 625 F.2d 1146 , 1149 (5th Cir.1980) (per curiam); Douglass v. First National Realty Corp., 548 F.2d 894, 897-98 (D.C.Cir. 1976). A civil contempt order is conditional, designed to enforce the court’s decree or to compensate for losses caused by noncompliance; criminal contempt is unconditional, designed to punish, vindicate the court’s authority, and deter others. Shillitani v. United States, 384 U.S. 364,368-70 , 86 S.Ct. 1531 , 153A-35, 16 L.Ed.2d 622 (1966); United States v. United Mine Workers of America, 330 U.S. 258, 302-04 , 67 S.Ct. 677, 700-01 , 91 L.Ed. 884 (1947); United States…

702 F.2d 770 1983-1 Trade Cases 65,300 FALSTAFF BREWING CORPORATION, General Brewing Company S & P Company, Plaintiffs-Appellants, v. MILLER BREWING COMPANY, and Philip Morris, Incorporated, Defendants-Appellees. No. 81-4214. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 5, 1982. Decided March 28, 1983. Theodore F. Schwartz, Clayton, Mo., Quentin L. Kopp, Kopp & DiFranco, San Francisco, Cal., for plaintiffs-appellants. Daniel M. Lewis, Arnold & Porter, Washington, D.C., Stephen Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before WALLACE, HUG, and ALARCON, Circuit Judges. ALARCON, Circuit Judge. 1 The Falstaff Brewing Corporation (Falstaff) has appealed from the order of the district court finding Falstaff in contempt for inter alia failing to return documents as required by a protective discovery order and imposing costs payable to Miller Brewing Co. (Miller) for the expenses incurred by Miller in an attempt to locate the missing items. We are asked to decide whether the facts support a finding of civil or…