Labor Relations Decisions Archive: 1937 - 1995, LABOR-RELATIONS 41 LC ¶16,664, Local 985, Teamsters, et al., Petitioners v. Thomas P. Thornton, U. S. District Judge, Eastern District of Michigan, Respondent., (June 21, 1960), U.S. Court of Appeals, Sixth Circuit, (Jun. 21, 1960)

Local 985, Teamsters, et al., Petitioners v. Thomas P. Thornton, U. S. District Judge, Eastern District of Michigan, Respondent.

United States Court of Appeals, Sixth Circuit. No. 14,259, June 21, 1960

On Application for Writ of Mandamus.

Sherman Act

Grand Jury Investigation--Order for Production of Union Records--Judicial Discretion.

--The fact that certain papers subpoenaed for a grand jury investigation of possible Sherman Act violations were not in the union’s possession and the production of the papers could result in an invasion of the constitutional privilege against self-incrimination did not evidence an abuse of discretion justifying the issuance of a writ of mandamus directing the lower court to quash the subpoena. The question of ability to produce the records could be raised when response was being made to the subpoena, and any claims of constitutional privilege could be asserted on appearance before the grand jury. The circumstances did not warrant interference by an appellate court through the application of an extraordinary remedy.

Back reference.--¶6320.35.

See also (DC, Mich. 1960) 41 LC ¶16,519, 184 F. Supp. 819.

Russell E. Ake, Cleveland, Ohio, for Petitioner.

Edward A. Eisele, Jr., Cleveland, Ohio and Joseph L. Lyman, Washington, D. C., for Respondent.

Before CECIL, WEICK and O’SULLIVAN, Circuit Judges.

PER CURIAM: A subpoena duces tecum, addressed to petitioner Local 985, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, was served upon petitioner William Vankoughnet, Secretary and Treasurer of such Local. The subpoena commanded production of certain books, records and papers of the aforementioned Local Union before a Grand Jury sitting in Detroit, Michigan. Petitioners moved the Honorable Thomas P. Thornton, District Judge, to quash the mentioned subpoena for reasons assigned in the motion. The motion was denied by Judge Thornton by order entered on June 8, 1960 [41 LC ¶16,519].

The matter is before this Court upon the petitioners’ application for an order staying proceedings and for the issuance of a writ of mandamus directing Judge Thornton to vacate his order and although not specifically mentioned, except as inferred in the prayer for general relief, we are presumably asked to direct Judge Thornton to enter an order quashing the mentioned subpoena duces tecum.

The pleadings before us disclose that Judge Thornton had jurisdiction to hear petitioners’ motion and to enter the order denying it. The papers making up the petitioners’ application to this Court reached the judges of this Court only yesterday, June 20. The date now set for response by petitioners to the subpoena duces tecum is tomorrow, June 22. The exigencies of time, therefore, do not permit extended discussion of the law applicable to the remedy here sought. The petition for the writ, however, does not disclose a situation persuading us to issue a writ of mandamus under the All Writs Statute, Title 28, USCA, Sec. 1651.

The case of Electric & Musical Industries, Ltd. v. Lawrence E. Walsh, 249 F. (2d) 309, is in point. There a writ of mandamus was sought from the Second Circuit to vacate an order of the District Judge denying a motion to quash a subpoena duces tecum. The Second Circuit there said:

“The order attacked by the petitioner is interlocutory and non-appealable. Cobbledick v. United States, 309 U. S. 323, 60 S. Ct. 540, 84 L. Ed. 783. As stated in 309 U. S. page 328, 60 S. Ct. at page 542, whatever right the witness may have requires no further protection than that afforded by the district court ‘until the witness chooses to disobey and is committed for contempt.’ The All Writs Statute, 28 USCA §1651, is to be used only in exceptional cases where abuse of discretion or usurpation of judicial power is ‘clear and indisputable’ . Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383-384, 74 S. Ct. 145, 148, 98 L. Ed. 106.”

The motion presented to the District Judge in the case at Bar was bottomed, generally, upon the claims that the command of the writ called for production of papers presently out of possession of the Union and in the hands of a Senate Committee, that the subpoena was unreasonable and vague and, that the required production of the Union’s books and records could result in invasion of the Constitutional privilege against self-incrimination of un-named members of the Union. The motion called for the exercise of the District Judge’s discretion. We find no abuse of that discretion. Whether it is physically impossible to produce all papers called for by the subpoena can be considered when response thereto is made. If a Constitutional right against self-incrimination is sought to be invoked by petitioner Vankoughnet on his appearance before the Grand Jury, that, likewise, can be dealt with by the District Judge at the time of such appearance. Such problems do not call for our now interference with Judge Thornton’s order.

This Court has affirmed the now well established principle that, except in really extraordinary situations, the sought for writ cannot be employed to interfere with or control the discretion of a district judge. Massey-Harris-Ferguson v. Boyd, 242 F. (2d) 800; Gottlieb v. Rubenstein, 252 F. (2d) 779; Regec v. Thornton, 275 F. (2d) 801; and Beneke v. Weick, 275 F. (2d) 38. The petition before us fails to disclose the necessary “clear and indisputable” right to the drastic and extraordinary remedy sought.

An order will be entered denying the motion for stay of proceedings and dismissing the petition for issuance of writ of mandamus.