Opinion
Treble damage action in which plaintiffs moved to use certain depositions previously taken. The District Court, Pence, J., held that there was sufficient identity of parties and issues between prior private antitrust action alleging the impeding of development of a ‘ No-Joint’ pipe and subsequent private antitrust action brought by manufacturers of cast-in-place pipe against some of the same defendants to authorize plaintiffs' use in subsequent action of deposition of 26 witnesses previously deposed in the prior actions.
Motion granted in accordance with opinion.
Carl W. Divelbiss, Divelbiss & Gage, Phoenix, Ariz., for plaintiffs.
George W. Jansen, San Diego, Cal., for American Pipe and Construction Co. and American Concrete Pipe Co.
John J. Hanson, Gibson, Dunn & Crutcher, Los Angeles, Cal., for United Concrete Pipe Corp.
Gordon F. Hampton, Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for Martin-Marietta Corp.
Gordon G. Greiner, Holland & Hart, Denver, Colo., for Hydro Conduit Corp.
Newman R. Porter, Evans, Kitchel & Jenckes, Phoenix, Ariz., for Six Points Lumber & Supply Co. dba O'Malley-Gannaway Concrete Pipe Co.
R. E. Johnson, Spector & Johnson, Phoenix, Ariz., for Arizona Concrete Pipe Co.
ORDER GRANTING PLAINTIFFS' MOTION TO USE HEREIN CERTAIN DEPOSITIONS PREVIOUSLY TAKEN IN THE NO-JOINT CASES
PENCE, District Judge.
Plaintiffs in this treble damage anti-trust action have moved the court for an order ‘ allowing and authorizing’ plaintiffs' use of depositions of twenty-six (26) witnesses previously deposed in the so-called No-Joint cases. The No-Joint cases were similar private anti-trust actions brought by manufacturers of cast-in-place pipe to recover alleged damages from some of the same defendants as herein. The depositions in question were taken during the course of pre-trial discovery conducted under the supervision of this court in the No-Joint cases. This court is intimately acquainted with the complaints in the No-Joint cases, and the facts developed during discovery proceedings therein. At the time the No-Joint actions were settled on the eve of trial, all discovery had been completed and detailed trial briefs had been submitted setting forth the factual basis of plaintiffs' and defendants' cases.
Title 15 U.S.C. §§ 1, 2 and 15.
No-Joint Concrete Pipe Co. v. American Concrete Agricultural Pipe Assn., C.A. 63-928-MP (C.D.Cal.); No-Joint Concrete Pipe Corp. of Southern California v. American Concrete Agricultural Pipe Assn., C.A. No. 64-374-MP (C.D.Cal.); W. M. Lynch Co. v. American Concrete Agricultural Pipe Assn., C.A. 64-858-MP (C.D.Cal.); United States No-Joint Concrete Pipe Company v. American Concrete Agricultural Pipe Assn., C.A. No. 64-1614-MP (C.D.Cal.).
Plaintiffs' Preliminary List of Proposed Deponents and Motion (filed September 8, 1967) indicates the particular witnesses and depositions at issue.
In considering the instant motion, the court has compared the No-Joint complaint with the allegations herein. The parties have submitted numerous memoranda on this matter, and it was argued on at least three separate occasions before this court.
See transcripts of pre-trial conferences on November 13, 1967, January 15, 1968 and February 19, 1968. This court orally announced the ruling contained herein at the February 19, 1968 hearing.
Defendants assert that use of the No-Joint depositions herein would be prejudicial. They contend the bulk of the No-Joint testimony is irrelevant since it relates to the period of time ending in late 1962, and plaintiffs claim damages on jobs bid in 1963 or later. Defendants further point to an alleged lack of complete identity of parties and issues with the No-Joint actions. Defendants have carefully detailed the differences in plaintiffs suing, and the variances in defendants named. Certain defendants are common to the No-Joint actions and this proceeding (although some common defendants were dismissed from No-Joint prior to the taking of the depositions in issue), while others were sued only herein. Defendants also maintain there is a difference between the conspiracy alleged in No-Joint, which ‘ impeded the development of a specific type of concrete pipe, i. e., so called ‘ No-Joint’ pipe', and the Fullerform allegation of ‘ a conspiracy to restrain and to eliminate the competition brought about by cast-in-place pipe.' Defendants argue it would be unduly burdensome to permit use of 26 No-Joint depositions as they would have to recall all such witnesses to specifically inquire regarding Fullerform. Eleven (11) of the No-Joint deponents allegedly are not employed by Fullerform defendants, and are outside the subpoena range of this court sitting in the District of Arizona. Under these circumstances, defendants contend they may even be denied the right to redepose those witnesses.
Defendants' Memorandum In Opposition To Plaintiffs' Use of Deposition (sic) Taken In Prior Cases (dated September 25, 1967) at page 7.
Defendants' Memorandum In Opposition to Plaintiffs' ‘ Supplemental Designation’ of No-Joint Depositions (dated February 13, 1968) at page 2.
Plaintiffs contest defendants' arguments by asserting that the general issue involved in the No-Joint depositions was ‘ whether or not a conspiracy had transpired.' In contrast to defendants' description, plaintiffs describe this conspiracy as one among manufacturers of pre-cast concrete pipe to eliminate cast-in-place producers as competitors in the market. Plaintiffs contend that the conspiracy was directed toward all no-joint (used generically) manufacturers regardless of whether they employ the Fuller-form, No-Joint or any other cast-in-place method of producing concrete pipe. Plaintiffs claim the No-Joint depositions were taken on this basis and are equally relevant to all suits by cast-in-place manufacturers. Accordingly, plaintiffs urge that there is sufficient identity of issues to allow use of the No-Joint depositions herein. Similarly, plaintiffs, while conceding certain differences in parties, maintain that the No-Joint defendants had the same interest and motive in that litigation as the Fullerform defendants. This identity of interest allegedly protects those Fullerform defendants not party to the No-Joint depositions, especially since defendants have the right of recall to clarify any existing ambiguities in the testimony.
Plaintiffs Response To Memorandum of Defendants In Opposition To Plaintiffs' Use of Depositions Taken In No-Joint Cases (filed October 19, 1967) at page 6.
As a general proposition, depositions taken in a prior proceeding are admissible in subsequent actions when there is ‘ substantial identity of parties and issues * * *.' There is some variance in the standard applied in determining whether sufficient identity exists, but this does not require total identity of parties and issues, as defendants assert. This court feels the proper standard was set out in Baldwin-Montrose Chemical Co. v. Rothberg, 37 F.R.D. 354, 356 (S.D.N.Y.1964), as follows:
Batelli v. Kagan & Gaines Co., 236 F.2d 167, 169 (9 Cir. 1956).
Compare Wolf v. United Air Lines, 12 F.R.D. 1 (M.D.Pa.1951); First National Bank in Greenwich v. National Airlines, 22 F.R.D. 46 (S.D.N.Y.1958); and Taylor v. Rederi A/S Volo v. Lavino Shipping Co., 249 F.Supp. 326 (E.D.Pa.1966); with Moultrie National Bank v. Travelers Indemnity Co., 275 F.2d 903 (5 Cir. 1960); E. A. Copeland v. Petroleum Transit Co., 32 F.R.D. 445 (E.D.So. Carolina 1963); Scotti v. National Airlines, 15 F.R.D. 502 (S.D.N.Y.1954); Rivera v. American Export Lines, 13 F.R.D. 27 (S.D.N.Y.1952); Hertz v. Graham, 23 F.R.D. 17 (S.D.N.Y.1958); Insul-Wool Insulation Corp. v. Home Insulation, 176 F.2d 502 (10 Cir. 1949). The court is unaware of any previous antitrust action in which this question arose.
‘ The import of Rules 26(d) and 42(a) of the Federal Rules of Civil Procedure taken together is that if a situation arises where there are common questions of law or fact and a substantial identity of issue, this court may order use of depositions and interrogatories taken in one action to be used in the other. * * * ‘ This relief is designed to avoid a needless waste of time, money and effort and to expedite the litigation. The defendants will have had their full opportunity to cross-examine the deponents in the Lober action (cf. Rule 26(d)) and the right to conduct further discovery proceedings on matters not covered in the Lober depositions and interrogatories. They are therefore not prejudiced by the relief granted. Nothing herein affects the use or admissibility of the depositions and interrogatories at trial.’
This court is well satisfied that there is sufficient identity of parties and issues to permit use of the No-Joint depositions herein. Defendants' contentions that the issues involved in the two actions differ ring hollow. Despite any dissimilarity in the two physical processes employed in producing ‘ No-Joint’ and ‘ Fullerform’ cast-in-place pipe, both complaints allege (1) existence of the same conspiracy (although Fullerform carries it further forward in time), and (2) injury resulting from the effect it may have had on competition.
The question then is whether a particular Fullerform defendant would be prejudiced by not having been present at a prior deposition which may be used against him. The answer is no. Defendants common to both actions have the same primary interest— disproving the existence of a conspiracy. They would have protected this interest in the No-Joint proceedings, to the benefit of themselves and all others similarly situated herein. The additional right to recall individuals previously deposed affords defendants the opportunity to correct, amplify or clarify any existing ambiguities or gaps in the record. While defendants contend this constitutes an incredible burden, it is certainly less burdensome than taking 26 depositions over again from scratch.
It is therefore ordered that:
1. Plaintiffs' motion to use some twenty-six (26) depositions previously taken in the No-Joint cases, supra note 2, is herewith granted, insofar as it encompasses only those No-Joint deponents now employed by defendants or within the subpoena range of this court;
2. If a particular No-Joint deponent is neither now employed by defendants or within the control of this court, plaintiffs are precluded from using such witness' No-Joint deposition; provided, however, that if plaintiffs make available such witnesses for re-examination, they may use such witnesses' No-Joint depositions or conduct complete examinations, at plaintiffs' option;
3. All rulings on the admissibility of particular portions of the No-Joint depositions at trial are reserved;
4. On or before May 6, 1968 the parties shall prepare and file with this court a list which specifies by name the No-Joint depositions which may be used herein pursuant to this order.