*1 benefits; require any ben- they simply is enforcing agency enti- byAct of the deference.”). principle provide This be furnished on a great tled to efits chooses enacting because was weakened Gilbert basis. In the PDA deference sex-neutral were then effect guidelines the EEOC Supreme Court’s view Congress rejected interpretation contemporaneous not a pregnancy-relat- for excluding benefits act, agency’s earlier contradicted the compre- an otherwise ed disabilities from another conflicted with interpretation and It is disability plan sex-neutral. hensive at 141- interpretation. 429 U.S. agency’s plan disability when the no more neutral None of those 45, 97 at 411-412. S.Ct. spouses and excludes employees’ covers current present The obstacles is here. the em- the sexes of pregnancy: because and the guidelines contemporaneous, were correlated, directly spouse are ployee and saw be- conflict the Court in Gilbert spouse part paid and the benefits and interpretation tween the EEOC’s benefits, the exclusion employee’s of the interpreta- Wage and Hour Administrator’s employees. I against male discriminates Act, at Pay see id. Equal tion of the substituting this conclusion reach removed expressly sex PDA definition of discrimination 2000e(k) PDA itself. See U.S.C. § definition, Congress which re- the Gilbert conflict 1980). majority sees IV (Supp. framework; VII jected, within Title position that current agency’s between the reveals that history of PDA legislative ease and present in the the PDA has force analysis. My mode of proper this is the introductory remarks position its by the EEOC conclusion is buttressed princi- existing Title VII guidelines great which deference. guidelines, deserve not view those I do ples must be consulted. I dissent. therefore reasons contradictory for the positions as does not above: the PDA stated in Part II only but within directly,
answer the issue I- larger Finally, Title VII framework. majority’s argument disagree with the
also unsup- interpretation EEOC’s MARRESE, Anthony M.D. R. for the reasons ported legislative history Treister, M.D., R. Michael Indeed, Congress’s ex- stated in Part II. Plaintiffs-Appellees, prior EEOC press endorsement nearly that the strong evidence guidelines I are correct. guidelines current identical OF ORTHO AMERICAN ACADEMY not to give there is no reason conclude that SURGEONS, PAEDIC deference. guidelines great See the EEOC Defendant-Appellant. Note, Pregnan- Spousal Benefits Under No. 81-2671. Act, Discrimination 50 Geo.Wash.L.Rev. cy Comment, (1982); Spousal Ben- Appeals, United States Court Act Pregnancy and the Discrimination efits Circuit. Seventh L.Rev. 13 Seton Hall 26, 1982. Argued Feb. reinforce (1983). guidelines therefore May the PDA’s lan- Decided I draw from the conclusion legislative history. guage Opinion En Granted and Rehearing Banc 19, 1983. July Vacated
IV requires nor PDA Neither Title VII fringe to provide employees employer customary employ- percent reasonable spouses of female conditions conditions, expenses employer for their medical example, covers if the ees. For expenses male pregnancy-related em- percent
employees for 100 reasonable ployee’s spouse covered at customary expenses must be a medical sustained for percent condition, dependent spouses level. covers *2 Stewart, Justice, Retired a dis- filed
senting opinion.
1491 *4 Griffith, Hinshaw, Culbertson,
D. Kendall Moelman, Fuller, Ill., Hoban & Chicago, for defendant-appellant. Foss, Sawyier,
Michael T. Schuman & Drake, Ill., J. Casey, Chicago, John for plaintiffs-appellees. PELL, Judge, STEWART,
Before Circuit (Retired), POSNER, Justice Circuit Judge.* * Judge Sprecher originally Judge place was the third member took Posner his and read the briefs panel, untimely prevented pertinent portions but his death record lis- participation his in the decision of this case. 746, 755-56, Surgeons, Ill.App.3d paedic
POSNER,
Judge.
Circuit
501, 508,
396 N.E.2d
Ill.Dec.
appeal
judgment
for
This is an
(1979).
then sued the
They
for
a dis-
contempt
disobeying
criminal
court, seeking injunctive re-
federal district
originally
order. The
was
covery
appeal
damages under section
of the
lief and
panel
opinion publish-
this
in an
decided
Act,
1. The complaint
15 U.S.C.
Sherman
§
Cir.1982),
ed
1493 us; ever, order, party against is a final reviewable and where the whom the order willing if a party pay price directed enough cared incur a sanc- suffering being punished contempt contempt tion for is a crude but serviceable such as equivalent sanction dismissal identifying method of the most burdensome if the of the he complaint validity order discovery waiving orders and finality disobeyed ultimately upheld, has he rule for them. get ap- order by immediate review that validity of the order contempt judgment. E.g., from the pealing the Academy disobeyed is therefore 530, 532-33, United 402 Ryan, States U.S. 26(c) us. properly before Rule of the Fed 1580, 1581-1582, 91 29 85 S.Ct. L.Ed.2d empowers eral Rules of Civil Procedure (1971); Ryan v. Commissioner Internal any district court to “make order which Revenue, (7th Cir.1975); justice requires protect party or person Co., v. McHugh Constr. 419 Hanley F.2d embarrassment, annoyance, oppres (7th Cir.1969); Serv., 957 National Util. sion, or expense, including undue burden or Serv., Inc. Wire v. Northwestern Steel & ... that discovery ...,” not be had Inc., (7th Cir.1970); F.2d 222 Hastings 426 26(d) court, Rule empowers “upon mo Dist., East v. North 615 Independent School tion, for parties convenience (5th Cir.1980). F.2d justice,” witnesses and in the interests True, hold, apparent some cases control order the sequence timing above, contradiction that where as discovery. Although manage the effective
this
the judgment
is for criminal rath ment of complex litigation requires that the
er
contempt
than civil
validity
judge
district
be allowed broad discretion in
underlying
questioned
not be
guiding the discovery process and therefore
appeal
contempt judgment. E.g.,
from the
exercising
powers
his
26(c)
under Rules
United States v.
Mine Workers of
United
(d),
Chrysler Corp.
Corp.,
v. Fedders
America,
258, 291-94,
U.S.
(6th Cir.1981),
his dis
694-696, 91
(1947);
L.Ed. 884
ITT Commu
unlimited,
cretion is not
and if we have a
nity
Barton,
Development Corp. v.
569 F.2d firm
conviction
he has made a mistake
(5th Cir.1978).
our
Yet
decision
reverse,
we must
Silkwood v. Kerr-McGee
in Hanley,
example,
involved criminal
*6
433,
Corp.,
563
Cir.1977).
F.2d
436
two
contempt; and the
lines of cases can be
ruling
In
on a motion to limit
reconciled,
Hanley McHugh
see
v.
Constr.
discovery the district judge
compare
must
Co.,
957;
at
supra, 419 F.2d
United States
hardship
the party against
to
whom
4,
v. Ryan, supra,
1494 complies discovery Academy more effort to show that
In an stake, are be reluctant offer can- interests at its members purely private than future, correspondence argues applicants that its did of evaluations relating to denials of atmosphere and other documents of mutual confidence and the protected membership exchange ideas applications encourages a free of argument, This Amendment. by First v. ex eroded. Cf. NAACP Alabama will be immunity complete establish a Patterson, if meant to 2 rel. U.S. law materials in a discovery of these (1958), in a involv- where L.Ed.2d Hos suit, See, e.g., Memorial untenable. membership ing to disclosure resistance Shadur, F.2d McHenry v. pital Cty. discovery proceedings information curiam), (7th Cir.1981) (per re Supreme recognized First Amend- Court hospital’s for a jecting privilege claim of purpose for the right of association ment proceedings against records disciplinary ideas. And set- expression advocacy staff Even if the physicians. considerations, one ting aside constitutional advocating controversial engaged were ghosts Aris- have to raise the should not of its internal publication views and the to be de reminded Tocqueville totle and to retaliation expose files members would voluntary are important associations views, have it would not an abso for those particular, people, Americans many discovery, though the privilege against lute are im- voluntary professional associations the burden of haye would then (a propo- portant professionals to American sought was showing that the information premise plaintiffs’ is the sition that essential to their case and unobtainable suit), as it was of their Illinois antitrust suit likely be less other means that would of deliberations confidentiality advocacy. Hastings See discourage such applications is essential to the membership Dist., Independent supra, North East School association, and voluntary character of an 632; In Prods. at re Petroleum involuntary that the disclosure therefore (2d7 Litigation, 680 F.2d Cir. Antitrust associa- membership voluntary files of 1982); City of Educ. of Gray Board worthy private tion harm interests. N.Y., (2d Cir.1982). files Although disclosure case, Yet there is in this if not would thus be cost sought by First right, First Amendment least a ly, might impossible make nondisclosure maybe two First Amendment interest — case or prove for them to their antitrust the discovery interests —which Amendment they have a meri even to discover whether impair sought would con the interest in the torious case. Since which differentiates this from the usual of an fidentiality association’s case, sought antitrust where absolute, is not the balance of deliberations min reports or salesmen’s invoices seem even. But hardships may therefore of directors. corporation’s utes of a board *7 26(d) of the Rules of Civil Rule Federal a exchanges The forum for (control sequence and tim of the Procedure techniques about and surgical information ac ing discovery) provides a method of public related inter matters substantial interests commodating competing the with exchanges be if est. These inhibited If is other damage either. there minimal has to its disclose complete must discovery plaintiffs that the that the protective files. The order district be able resist a motion order to answer, complete is not not judge entered thus judgment, for and summary defendant lawyers’ ar only it is the kind of because plaintiffs’ significant chance that rangement laymen instinctively that dis regardless will of what the internal fail particular trust also because the show, they seeking files are themselves, that and not plaintiffs allows the under words, judge power use his allows, district should just in other their counsel — 26(d) require to com for disappointed applicants two member Rule other, discovery first. plete hold files. nonsensitive ships get of their If —to
1495
power
be
bers to
questioned.
His
do so cannot
deal with the
on the iden
Miller,
Wright
they
8
Practice
tical terms on
deal
&
Federal
which
with each
See
2040,
(1976). Nor,
other,
boycott.
Procedure
2047
we
Although
§§
hence a
think, his
case.
duty,
appropriate
As used
boycotts
often to be said that
were
recently
First
in dealing
se,
Circuit stated
illegal per
was never entirely
that
true.
question
discovery
the related
The best
known statement
the Rule of
sources,
newsmen’s confidential
“As a
boycott case,
Reason is found in a
Board of
matter,
threshold
the court should be satis
States,
Chicago
Trade of
City
United
frivolous,
pretense
fied that a claim is
not
231,
242,
246 U.S.
38
Of the plaintiffs gality. been, if did Since there has at least as need anything beyond not yet, suggestion contents of no American Acad Academy’s membership files prove emy Surgeons of Orthopaedic power has the case, there would no other prevent anyone essential practicing ortho discovery they could be asked to do before paedic surgery, these cases are of doubtful access to getting Academy’s files. But relevance. is a question And there to what extent, appear it does aré with their on the emphasis welfare *8 attempting prove to se per competitors (the a antitrust of of than rather consumers fense that would if the complete be Acade excluded railroad in Terminal Ass’n my’s files Academy showed that the had an appears case been complaining to have anticompetitive denying ap motive in cartel!), about its exclusion from a they can plications membership. The denial was survive the consumer-oriented view of anti See, a collective refusal by Academy’s prevails today. e.g., mem- trust Reiter 1496 America, 330, 343, (7th Cir.1982); of 99 Havoco Corp., 442 U.S. 1352 v. Sonotone Co., (7th 626 F.2d 558 Re- Ltd. v. Shell Oil (1979). L.Ed.2d Datsun, Cir.1980). supra, in Phil Tolkan this court held As recently, them
viewing on illegal per accept be se decline boycotts cannot deemed 672 F.2d at “we to on de- impact competitors any the basis of their contention that plaintiff’s apparent if consuming public, rather on trade membership by ongoing than of an nial to per there no “direct effort influence se is constitutes a violation association for, of, a competitor’s or demand supply restrictions trade [Membership .... Datsun, Inc. Phil Tolkan product.” possessed of significant not organizations Adver- Milwaukee Datsun Dealers’ Greater leverage more operational or are economic Inc., Ass’n, 1280, 1286 tising 672 F.2d to the according evaluated appropriately is in this case. Cir.1982). alleged None And, reason.” of standards of the rule of Academy are of plaintiffs competitors course, op- or “significant is economic what members, valuable membership be is of too. leverage” proof a matter erational member and non- both competing Thus, of get over the hurdle a defense con- is no orthopaedists, member but there summary the com- judgment motion for at di- Academy interfering is tention that the plaintiffs pletion pretrial plaintiffs’ suppliers access to rectly with the have other evidence besides will have to customers, get their hos- by trying as they find in whatever delicious morsels alleged pital privileges staff revoked. The files on denials of member- Academy’s membership plain- effect of on denial applications. do not have the ship They medi- ability practice orthopaedic tiffs’ though they may get it yet, other evidence indirect, law- just denying cine is as a trial through discovery. According to additional College membership in the American yer majority the na- their counsel the vast only Trial have an indirect Lawyers would who been orthopaedic surgeons tion’s have We effect on to obtain clients. ability his orthopaedic medicine for at least practicing course, speaking degree are of matters of (one counsel years plaintiffs’ three effect, by “indirect” which we mean Acade- percent) are members said complete falling one far short of exclusion 10,000 my, and it has members in all. market, support per a will not se Academy suggest not plaintiffs do boycott. attack on a members. places any restrictions allege plaintiffs price-fixing Nor a do meetings open to Academy’s Even the among orthopaedic surgeons, a conspiracy nonmembers, object, though plaintiffs the exclusion of the conspiracy to which us, having as it frivolously seems plaintiffs from This not badges. wear nonmember does if, very might ancillary. Even we as be a case where an association appear to doubt, could price-fixing allegation much a making “direct to influence the effort the com be teased out the statement for, of, competitor’s supply or demand con willing Dr. “to plaint that Treister Datsun, supra, Phil product.” Tolkan out-patients on a surgical high-volume sult at F.2d implying “high perhaps volume” basis” — circumstances, if all of In these price given have no indi low —the same Academy’s members were in the wanting cation of to rest their entire market the consumer interest in effective per on this to the se doctrine. tenuous link competition seriously could not be harmed go boy They prove want further others the exclusion illegal cott if at all under the like exclusion is in them —not such Reason, they Rule of and to do that will argue that the cards: do not “anticompetitive prove have to trial some practice into the entry controls boycott. from the Lektro- market effect” Co., Ten thousand is orthopaedic surgery. Corp. Vend v. Vendo they Unless (7th Cir.1981); competitors. vast number of Dos Columbus-Cu Santos Center, compete and backed explicitly agreed Medical neo-Cabrini *9 adequate predicate per theory ma- an for a se of agreement with enforcement up the prevent liability. emphatically to members from We do not decide chinery individual would be assured that not be able to make the cheating, they the consumer will competitive in a mar- buying required showing; discovery yet the benefits of since is not in is a sense which though complete, opin- ket. And there statements of fact in this all any competitor the of reduces stage exclusion early ion are tentative. But at this of competi- competition, case, it is not the sense of the where the of virtually only facts to law. Prod- tion that is relevant antitrust bearing competitive record on effect are Agency, ucts Ins. Inc. v. Crum & Liability Academy that the has thousands of mem- (7th Cos., F.2d Forster Ins. bers, behavior, regulate does not their and Cir.1982); Life Ins. of Amer- University Co. does entry, not control the cannot Ltd., ica v. Unimarc showing. be said to made required have the Cir.1983). competition The of is de- policy The district court should not in these cir- signed for the ultimate benefit of consum- discovery have the cumstances ordered of competitors, ers than individual rather of files Academy’s membership before there pres- and a consumer has no interest in the discovery competi- was on issue of any the competitors of a number of ervation fixed enough tive It was court effect. not greater than the to required number assure “nothing to in observe the Federal being buy competitive his able to Rules of Procedure or the law Civil case older, price. Maybe competitor-protec- requires imposition of such a bifurcation tion view would survive in a case of naked discovery] plaintiffs.” on As have we [of in aggression resulting the total exclusion out, a pointed power district court has the market, competitor of a but that 26(c) (d) under Rules Federal per (if se and this anything) would be case Procedure, Rules of and in a Civil clear is not. defer duty, discovery to a burdensome request of on 10,000 pending completion discovery of the Academy The members do an not, however, may dispose issue that of the entire case compete all in mar- the same request make the We thereby ket. Assume that ortho- moot. market of paedic speaking postponement, here surgery is local—that Dr. Marrese denial, discovery. with not of There competes orthopaedists other Ev- ansville, hardship would have been no plain- Dr. to the orthopae- Treister other tiffs in to Chicago. requiring dists in The will still them conduct discovery competitive get- effect showing the burden at trial of that in before have ting files. Academy’s membership these local into the markets number ortho- The paedic surgeons belong sequence discovery have Academy who to the well among is so few that been to competition them— intended coerce competition any settle but in event balance hard- Academy apparently ships is make attempt enough does not limit or clear us conclude regulate —can- give refusing discovery consuming postpone be relied on to able public judge the benefits files the district competition. Unless they they can show this will unable committed clear error. ask trier of fact to draw an inference contempt judgment criminal
that either the exclusion of an individual Although therefore reversed. orthopaedist from local or the market complaint also asks us to order the dis- possible effect of that exclusion on com- grounds judicata, missed on of res dis- petitive aspirants behavior of other mem- trict denial of the mo- judge’s Academy’s price could in a bership higher result interlocutory tion dismiss lower quality orthopaedic surgery in appealable only 1292(b), under 28 U.S.C. § these communities. requires judge certify which the district writing opinion that he is have no ef “of made controlling question fort involves a yet probable to show a [the order] law anticompetitive along foregoing effect as to which there is substantial others, any yet opinion lines or have they ground nor laid for difference of *10 Instead, im- ceedings. the District Court appeal from the order an immediate limiting strictly a protective order posed termina- the ultimate materially advance ” materi- application access appellees’ Rightly litigation .... tion of als, “[ujnder those restrictive finding that make the refused to wrongly, judge conditions, confidentiality of the Acade- certification, jur- no we therefore have largely pre- process admission my’s order. interlocutory to review his isdiction served.” Cir.1959). (5th Watkins, In re acknowledges, district As Court Reversed. in discretion must have substantial judge in the district dissenting. proceed how cases STEWART, (Retired), controlling Justice broad particularly court. That discretion opinion Much that is said in e.g., Voegeli respect discovery. See with I Specifically, Court strikes me as correct. Cir.1977). If Lewis, v. power, a district court has the agree that to dis the district courts authority 26(c) duty, under Rules sometimes the preserved, be discovery matters is to pose of Proce- Rules of Civil (d) of the Federal its interpose court appellate dure, discovery re- to defer burdensome unless the lower judgment on such matters quest pending completion with the con court’s leaves it firm decision case. of the entire may dispose an issue that made. viction a mistake has been my But for reasons stated dissent case, carefully this the District Court In F.2d, at see 692 original opinion, Court’s competing interests and rea- considered the 1097-1098, agree with the Court’s I cannot be sonably they could best determined Court’s conclusion that District ultimate through discovery pursuant accommodated Acade- discovery of the postpone refusal to order. protective Other restrictive in this was “clear my’s application files case reach other conclu- judges reasonably could error.” sions, say but I cannot decision us At before controversy the heart Ac- us was an abuse of discretion. before legit- Academy’s is the between the conflict cordingly, dissent. respectfully I confiden- preserving imate concern records, tiality appellants’ and the of its prove which to
need for evidence with interest, Academy’s antitrust claim. The characterized, the se- preserving
however
crecy deliberations substantial. If of its qualifi- charged determining those America, Appellee, UNITED STATES applicants cations organization cannot be assured professional will remain confiden- their evaluations BENTLEY, Appellant. Tillman J.
tial, candid in their they may less than America, Appellee, UNITED STATES of assessments, legiti- organization’s and the limiting membership its mate interest impaired. qualified persons may be PLATT, Appellant. Nathan fully cognizant of District Court was 82-1696, Nos. 82-2337. denying these concerns. In its Appeals, United States Court request delay discovery Academy’s Eighth Circuit. files, acknowl- explicitly the District Court edged public disclosure contents 12, 1983. Submitted Jan. “chill- would have a application files April Decided Academy’s future delib- ing effect” on the 2, 1983. Rehearing Overruled June deter- But the District Court also erations. sought-after materials were mined that important appellees’
critically pro- “bifurcate” the
therefore declined to