W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Appellant, v. L. E. Mcdade, D/b/a Dixie News Company, Appellee, 330 F.2d 610 (5th Cir. 1964)

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US Court of Appeals for the Fifth Circuit - 330 F.2d 610 (5th Cir. 1964) April 16, 1964

Bessie Margolin, Associate Sol., Dept. of Labor, Washington, D. C., for appellant.

Joseph B. Bergen, Savannah, Ga., for appellee.

Before MARIS,*  GEWIN and BELL, Circuit Judges.


This is an appeal from an order dismissing two suits brought by the Secretary of Labor to enforce provisions of the Fair Labor Standards Act, 29 U.S.C.A. Supp. 4, Section 201 et seq., which order was entered pursuant to the provisions of Federal Rules of Civil Procedure, rule 37 (b) (2) (iii), resulting from a refusal by the Secretary to comply with a discovery order directing him to deliver to the employer for inspection "any and all statements" taken by representatives of the Secretary. The order of the District Court was entered pursuant to Rule 34 dealing with discovery upon motion, giving notice, and showing good cause therefor. Upon a careful review of the record, it is our conclusion that the Secretary may not be compelled to make the disclosure ordered by the trial court as part of the discovery process long before the time for trial. See Wirtz v. Continental Finance & Loan Co., (5th Cir. 1964) 326 F.2d 561.

The judgment is reversed and the cause is remanded for further proceedings consistent with the principles herein stated.


Of the Third Circuit, sitting by designation

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