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IN RE WHEAT FARMERS ANTITRUST CLASS ACTION

October 21, 1977

IN RE: WHEAT FARMERS ANTITRUST CLASS ACTION, JOE ZINSER et al., Plaintiffs
v.
CLARENCE PALMBY & CONTINENTAL GRAIN COMPANY, Defendants, JOHN SPEARMAN et al., Plaintiffs v. CLARENCE PALMBY & CONTINENTAL GRAIN COMPANY, Defendants, EDGAR W. CLEVELAND et al., Plaintiffs v. CLARENCE PALMBY et al., Defendants



The opinion of the court was delivered by: SIRICA

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 440 F. Supp.]

 ORDER

 Consistent with the memorandum opinion issued of even date herewith, it is, this 21st day of October, 1977,

 ORDERED that plaintiffs' motion for production of documents be, and the same hereby is, granted in part and denied in part as follows: with regard to Documents III, IV, V, VI, VII, VIII, IX, and X the motion is denied; with regard to Documents I and II the motion is granted; with regard to Document XI, the motion is denied as to paragraph two, denied as to the final twenty-six (26) words of paragraph nine, and granted as to the remainder of the document; and it is

 FURTHER ORDERED that the government deponents shall retrieve the eleven documents in the Court's possession within five days of the date of this order; and it is

 FURTHER ORDERED that the government deponents shall produce, forthwith, all portions of the documents described in the partial grant of plaintiffs' motion which have not been heretofore produced; PROVIDED, HOWEVER, that this order is hereby stayed for a period of twenty (20) days from this date in order to allow the parties herein to agree to a stipulation for a proposed protective order.

 JOHN J. SIRICA / UNITED STATES DISTRICT JUDGE

 The three cases which comprise this antitrust class action have been consolidated for purposes of pretrial proceedings and are currently pending in the United States District Court for the Western District of Oklahoma (Multidistrict Litigation Docket Number 129). The consolidated action is presently before this Court for the limited purpose of resolving plaintiffs' motion for production of documents pursuant to Rules 37(a) and 45(d) of the Federal Rules of Civil Procedure. This Court is the appropriate forum for plaintiffs' motion because the motion is directed at two non-party deponents and because the non-party depositions were taken and subpoenas duces tecum issued in this judicial district. See Fed. R. Civ. P. 37(a)(1).

 The lawsuits which underlie the consolidated class action were filed in October and November of 1976. Plaintiffs -- Texas and Oklahoma wheat farmers -- alleged that several large grain exporting companies and one former Department of Agriculture official conspired to withhold information regarding the 1972 U.S.-Soviet grain sale from the public. As a result, according to plaintiffs, grain prices were kept at a lower level than would have obtained had the fact or the magnitude of the planned grain sale been generally known. Defendants' actions are claimed to have violated the antitrust laws, primarily section 1 of the Sherman Act, 15 U.S.C. § 1 (1970).

 The cases were consolidated in the Western District of Oklahoma on April 23, 1975, after which the parties apparently engaged in extensive discovery. In May 1976, the Oklahoma court issued a pretrial order in which it limited the "second wave of discovery" to two issues relating to the question of liability: "(1) whether defendants conspired to fix the price of wheat sold on the open market in the relevant geographical areas between May 1, 1972 and September 1, 1972, by collusively suppressing information concerning the 1972 Russian wheat agreements; and (2) whether the alleged conspiracy had an actual injurious effect upon the plaintiffs with respect to the price of wheat sold by them on the open market in the relevant geographical areas between May 1, 1972 and September 1, 1972."

 In November 1976, plaintiffs caused to be issued by the clerk of this Court, pursuant to Rule 45 of the Federal Rules of Civil Procedure, subpoenas for the attendance of witnesses and the production of documents at several depositions to be held in the District of Columbia. The subpoenas were directed at the Departments of State and Agriculture (hereinafter "the government") and instructed each department to designate an appropriate official to be deposed concerning the sale of agricultural commodities to the Soviet Union in 1971 and 1972. The witnesses were also commanded to bring with them a wide variety of documents relating to the same subject.

 In its present posture, the dispute revolves around only eleven documents. Although some of these documents are still classified, the government has never formally asserted a claim of privilege. At the September hearing, the Court was informed by counsel that the government now declines to assert privilege because it believes such claims should be reserved for the most critical situations. The government now argues, however, that the disputed documents are wholly ...


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