NLRB v. Modern Drop Forge Co.

NLRB v. Modern Drop Forge Co.

Opinion

ORDER

On September 3, 1996, the National Labor Relations Board ("NLRB") filed a petition for a temporary injunction under section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), against the Modern Drop Forge Company ("the Company"). The NLRB believed that the Company unlawfully failed and refused to bargain with a union which [*2]  represented the Company's employees.

On September 5, 1996, the Company served two Notices of Deposition on the NLRB. First, the Company subpoenaed Elizabeth Kinney, the petitioning Regional Director of the NLRB, with an accompanying request for production of documents including "each and every document supporting your contention that the injunction sought in this matter is just and proper." The Company also subpoenaed the NLRB, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, to supply a representative with knowledge supporting the contention that issuing an injunction would be "just and proper."

On September 11, 1996, in response to a motion by the NLRB to limit discovery, the district court indicated that it would allow the Company to engage in some discovery, specifically the deposition of the Rule 30(b)(6) representative. The NLRB designated Kinney, the Regional Director, as the Rule 30(b)(6) representative.

On September 18, 1996, the district court ruled that the Company could depose Kinney with respect to "the facts relied upon but not how each one weighed in the ultimate decision [to seek an injunction]." The court continued: "You can't ask the Regional [*3]  Director . . . [whether] this fact was more important to [her] than another fact, or was this more important than that . . . ." The district court concluded that the Company could depose Kinney with regard to "the ultimate conclusion and facts relied upon but not the mental process by which she went from this to that."

Kinney's Rule 30(b)(6) deposition was set for 9:00 a.m. on October 10, 1996. Fifteen minutes before the deposition was to start, the NLRB's attorney called the Company's attorney to cancel the deposition. The NLRB's attorney advised the Company that the NLRB would not produce either Kinney or another Rule 30(b)(6) representative as ordered because it believed that the district court was wrong in determining that the NLRB could be deposed regarding its "deliberative process." On that same day, the Company asked the district court to sanction the NLRB by dismissing the action pursuant to Rule 37(b)(2). The Company cited Madden v. Milk Wagon Drivers Union Local 753, 229 F. Supp. 490, 493 (N.D. Ill. 1964) in support of its contention that dismissal by the district court was appropriate because the NLRB had obstructed discovery.

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