Rodgers v Teitelbaum Motion for A Stay and for Relief Pendente Lite

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

No.

JIMMIE L. RODGERS and JOHN A. TURNER, et al.,
Petitioners,

- vs -
UNITED STATES STEEL CORPORATION; LOCAL 1397 
AFL-CIO, UNITED STEELWORKERS OF' AMERICA;
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO, 
and UNITED STATES OF AMERICA, Respondents,
HONORABLE HUBERT I. TEITELBAUM, UNITED STATES DISTRICT JUDGE,

Nominal Respondent

MOTION FOR
A STAY AND FOR RELIEF PENDENTE LITE

Of Counsel:
BRUCE W. KAUFFMAN 
Dilworth, Paxson, Kalish 

& Levy
2600 The Fidelity Bldg. 
123 South Broad Street 
Philadelphia, Pa.

BERNARD D. MARCUS 
Kaufman & Harris

624 Oliver Building 
Pittsburgh, Pa. 15222

JACK GREENBERG 
JAMES M. NABRIT, III DEBORAH M. GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019

BARRY L. GOLDSTEIN 
Suite 426
733 15th Street, N.W. 
Washington, D.C. 20005



IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT 

NO.

JIMMIE L. RODGERS and JOHN A. TURNER, et al.,
Petitioners,

- vs -
UNITED STATES STEEL CORPORATION; LOCAL 1397 
AFL-CIO, UNITED STEELWORKERS OF AMERICA;
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO, 
and UNITED STATES OF AMERICA, Respondents,
HONORABLE HUBERT I. TEITELBAUM, UNITED 
STATES DISTRIC JUDGE,

Nominal Respondent

MOTION FOR
A STAY AND FOR RELIEF PENDENTE LITE

Petitioners hereby move this Court for an order 
staying, or vacating pendente lite, the November 2, 1976, 
order of the United States District Court for the Western 
District of Pennsylvania permitting the defendant United 
States Steel Corporation to serve interrogatories on 509 
class members in this case.

This action, alleging that the defendants United 
States Steel Corporation and the United Steelworkers of 
America have engaged in systematic racial discrimination in 
violation of Title VII of the 1964 Civil Rights, was filed



in 1971. Plaintiffs first moved for class action certifi­
cation in May 1973, and their motion was finally granted 
by order dated December 9, 1975. While plaintiffs enga­
ged in extensive discovery, the defendant company and union 
never served on the plaintiff class representatives any 
interrogatories, requests for admissions, or requests for 
production of documents. The sole discovery heretofore 
sought by the defendants was to depose, in 1973, the two 
named plaintiffs; the questions asked by counsel for 
defendants at these depositions were limited to the indivi­
dual claims of the plaintiffs. On January 26, 1976, the 
District Court established December 31, 1976 as the cut-off 
date for all discovery.

On October 13, 1976, counsel for the defendant 
Company informed counsel for plaintiffs that they intended 
to serve a forty-page set of interrogatories, containing 28 
questions, with over 140 sub-parts, and requiring the produc­
tion of 10 different types of documents. The interrogatories 
were concerned with the detailed circumstances of each class 
member, and contemplated that a separate set of answers would 
be prepared for each of the 509 class members as to whom 
information was sought. Pp 13a-53a. The company proposed that 
the 20,360 pages of answers to interrogatories, including 
responses to 71,260 subquestions, be filed within 30 days. 
Counsel for the company indicated their intention to serve 
these interrogatories, not on counsel for the class, but by 
certified mail directly on each of the 509 class members as 
to whom the information was sought. P. 54a.

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On October 22, 1976, counsel for plaintiffs 
moved for a protective order and for an order deferring 
answers regarding individual claims until after trial on 
liability. Pp.55a-73a. The District Court denied these 
motions and granted the Company's motion to serve the inter­
rogatories (pp. 10 a-12a) on November 2, 1976, but granted 
plaintiffs an ..additional 60 days to answer the interrogato­
ries. Pp.101a-102a. Thereafter counsel for U.S. Steel 
sought express approval by the Distric Court of its proposal 
to serve the interrogatories directly on the individual class 
members, rather than on the attorney representing the class. 
Pp.104a-107a. On November 9, 1976, Judge Teitelbaum indica­
ted that he had approved such service in his November 2 order. 
P.113a. Plaintiffs immediately sought a stay of the 
November 2 order pending application to this Court for a writ 
of mandamus. Pp.120a-121a. Judge Teitelbaum denied the re­
quested stay on November 22, 1976. P.150a.

Petitioners have already filed with this Court a 
Petition for a Writ of Mandamus and/or Prohibition. Peti­
tioners request that, pending resolution of that Petition, 
the Court stay Judge Teitelbaum's order of November 2 permit­
ting the service of the disputed interrogatories.

Petitioners maintain that it is highly likely that 
the writ will be granted. The proposed service of the inter­
rogatories on the individual class members, rather than on 
their counsel, is an unprecedented and unwarranted attempt 
by the company and District Court to interfere with the res­
ponsibility of counsel to advise and represent those clients.

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This Court has twice found it necessary to issue writs of 
mandamus to the same judge in this very case to prevent 
similar interference. Rodgers v. United States Steel Corp.,
508 F .2d 152 (3d Cir. 1975), cert, denied 420 U.S. 969 (1975); 
Rodgers v. United States Steel Corp., 536 F. 2d 1001 (3d Cir. 
1976). Even if the interrogatories were served on counsel, 
the requirement that plaintiffs answer 71,260 written ques­
tions regarding individual claims is unauthorized by law.
For the reasons set out in detail in the Petition,
the November 2 order was an abuse of discretion and beyond
the power of the District Court.

The service of the disputed interrogatories would 
clearly cause irreparable injury to plaintiffs and the class 
members involved. The class members would have to expend 
literally thousands of hours preparing answers to the 140 
subquestions posed to each and collecting, in most cases from 
the defendants, the thousands of documents involved. The 
Federal Rules encompass no clear remedy for the enormous amount 
of time and energy that will be wasted if the interrogatories 
are subsequently disapproved. Any attempt by counsel to 
assist in this process is, of course, doomed to failure, since 
the 71,260 questions would require over 1000 answers be 
drafted every working day; any good faith though vain effort 
would require that plaintiff's counsel abandon all of their 
legal responsibilities for 3 months. It is at best unclear 
whether the thousands of attorney hours thus wasted could be 
compensated if the plaintiffs, though successful in demon­
strating the interrogatories were improper, do not prevail on

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the merits. To the extent that, in answer to these interro­
gatories, class members divulge privileged matters or other 
information to which the defendants were not entitled, the 
subsequent proceedings would become a quagmire of problems 
about the extent to which any defenses were thus tainted. 
Moreover, the service of these burdensome interrogatories, 
which on their face include the name and apparent approval of 
counsel for plaintiff, p,15a, will cast an irrevocable pall 
over future relations between counsel and the class, and reduce 
the willingness of class members to provide counsel with tes­
timony or necessary information.

These interrogatories, coming from the class members' 
employer are bound to intimidate the black steelworkers on 
whom they are to be served. Class members are warned that 
"[f]ailure to answer these interrogatories can result in the 
imposition of sanctions by the Court, including, but not limited 
to, the dismissal of any claims" of the class member. Pp.l5a-16a. 
(Emphasis added). What the limits are is left to each class 
member's imagination. This harassment of the plaintiff class, 
and the interference with counsel's preparation of their case 
which is bound to result from requests for assistance from the 
class members (see p,15a), constitute so profound interference 
with the conduct of plaintiff's litigation as to impair their

1/ Petitioners maintain that such an award of counsel fees 
would be required at once, and regardless of the final 
outcome of the case, in view of the manifest bad faith 
of this discovery request.

1/

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First Amendment rights to associate for the purpose of con­
ducting civil rights litigation, NAACP v. Button 371 U.S. 415 
(1963). Such a violation of the constitutional rights of 
plaintiffs and their class is, in itself, irreparable injury.

The service of these interrogatories would entail 
as well a number of problems which may, in the most techni­
cal of senses, be reparable. If class members are dismissed 
for failing to answer —  at all, completely, or well —  the 
interrogatories, they can and must later be reinstated if 
the interrogatories are disapproved. Any "evidence" or 
"admissions" disclosed by class members thus deprived of the 
assistance of counsel could and must be declared inadmissible. 
The considerable cost of xeroxing, notarizing and mailing the 
5 copies of the 40 page interrogatories and all the documents 
requested, about $30 for each class member, or a total of 
approximately $15,000, would of course have to be refunded if 
the writ is ultimately granted. The vast administrative 
problems required to repair injuries of this sort should not, 
we believe, be needlessly incurred.

In opposing the stay in the District Court the 
company made no claim that a stay of the disputed discovery 
would work any irreparable injury on it. Pp.144a-145a. The 
company argued, however, that if the service of the interro­
gatories were delayed it would require additional time to 
prepare for trial. If the requested stay is granted 
petitioners would, of course, agree to any extension of time 
for the defendants which might be necessitated by that stay.

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CONCLUSION
For the above reasons an order should issue 

staying the order of the District Court insofar as it 
permits service of the disputed interrogatories.

Respectfully submitted,

BERNARD D. MARCUS'/
KAUFMAN & HARRIS//

415 Oliver Building 
Pittsburgh, Pa. 15222

JACK GREENBERG 
JAMES M. NABRIT, III 
DEBORAH M. GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019

BARRY L. GOLDSTEIN 
Suite 426
733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Petitioners
Of Counsel:

BRUCE W. KAUFFMAN 
Dilworth, Paxson, Kalish 

& Levy
2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pa.

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