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HERROD v. PEOPLES DRUG STORES

September 20, 1976

WYATT HERROD, Individually and on behalf of all other persons similarly situated, Plaintiff,
v.
PEOPLES DRUG STORES, INC., Defendant



The opinion of the court was delivered by: SIRICA

 This is a Title VII racial discrimination suit. At this juncture, two questions are ready for decision:

 (1) Whether the magistrate correctly recommended that the Court should, in the exercise of its power under Rule 37(a)(4) of the Federal Rules of Civil Procedure or of its inherent power, grant motions for damages filed by both parties against a non-party, the D.C. Unemployment Compensation Board; the Board is an instrumentality of the D.C. government;

 (2) Whether the Court should certify this suit as a proper class action.

 I. The Damages Issue

 The plaintiff in this case is Wyatt Herrod, a black who was formerly employed by the defendant Peoples Drug Stores, Inc., ("Peoples"), in the District of Columbia. On April 16, 1973, Peoples discharged him, and one month later, the D.C. Unemployment Compensation Board granted his claim for unemployment benefits. Peoples immediately appealed this decision administratively, and in June of 1973, the Board held an oral hearing regarding the circumstances of the discharge. The testimony at the hearing was tape-recorded but never transcribed. After the hearing, the Board affirmed its earlier decision.

 Over a year after the hearing, the plaintiff brought suit in U.S. District Court in Maryland under Title VII. He alleged that Peoples had discriminated against him and other people similarly situated because they are black.

 As part of the plaintiff's discovery in this case, he subpoenaed the records of the oral hearing before the D.C. Unemployment Compensation Board. Peoples did not object.

 Without looking to see if the records existed, the Board simply moved to quash the subpoena on the ground that the records were privileged under D.C. Code ┬ž 46-313(f)(1973). That section provides that:

 
Except as hereinafter otherwise provided, information obtained from any employing unit or individual pursuant to the administration of this chapter and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or be open to public inspection in any manner whether by subpoena or otherwise, revealing the individual's or employing unit's identity. Any claimant (or his legal representative) shall be supplied with information from the records of the division to the extent necessary for the proper presentation of his claim in any proceeding under this chapter with respect thereto. . . .

 The statute then goes on to list a number of federal and state agencies which may nevertheless be entitled to some or all of the information.

 It is clear that this statute was never intended to deny the records of the proceedings to the very parties who were involved in the proceeding. But the Board either did not bother to look to see who was making the request or did not think that fact significant.

 Sometime before she reached her decision, however, the Board for some reason decided to see if any of the records the plaintiff was seeking in fact existed. To its surprise, it discovered that the tape recordings of the oral hearing, which composed nearly the entire record, had been erased, probably in June of 1974, some five months before the plaintiff had first asked to see them. The Board apparently thinks it was then that ...


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