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Societe Internationale v. Rogers, 357 U.S. 197 (1958)

Societe Internationale Pour Participations Industrielles

et Commerciales, S.A. v. Rogers

No. 348

Argued May 1, 1958

Decided June 16, 1958

357 U.S. 197


In a suit under § 9(a) of the Trading with the Enemy Act brought by petitioner, a Swiss holding company, for the return of property seized by the Alien Property Custodian under § 5(b), the District Court ordered petitioner to produce certain records of petitioner's Swiss bank. The Court found the records to be relevant and to be within petitioner's "control," within the meaning of Rule 34 of the Federal Rules of Civil Procedure. The records were not produced, on the grounds that their production would violate Swiss penal laws and that an order prohibiting their production had been made by the Swiss Federal Attorney. The District Court ruled that, unless full production were made, the complaint would be dismissed. During further lengthy proceedings, petitioner produced over 190,000 documents, but was unable fully to satisfy the Court's order. The District Court found that petitioner had shown good faith in its efforts to comply with the production order, but it concluded that, apart from Swiss law, petitioner had control over its bank's records, that such records might prove to be crucial in the outcome of the litigation, and that Swiss law did not furnish an adequate excuse for failure to produce them. Accordingly, it dismissed the complaint with prejudice. The Court of Appeals affirmed.

Held: on the record, dismissal of the complaint with prejudice was not justified; the judgment is reversed; and the cause is remanded for further proceedings. Pp. 357 U. S. 198-213.

(1) In this instance, accommodation of Rule 34 of the Federal Rules of Civil Procedure to the policies underlying the Trading with the Enemy Act justified the action of the District Court in issuing the production order, notwithstanding petitioner's claim that Swiss law, backed by criminal sanctions, prevented petitioner from having "control" of the records within the meaning of Rule 34. Pp. 357 U. S. 204-206.

Page 357 U. S. 198

(2) Whether a federal district court has power to dismiss a complaint because of failure of the plaintiff to comply with a production order depend exclusively upon Rule 37(b), which addresses itself with particularity to the consequences of a failure to make discovery by listing a variety of remedies which a court may employ. The Rule makes no real distinction between "failure" to comply and "refusal" to obey. Pp. 357 U. S. 206-208.

(3) On the record in this case, dismissal of the complaint with prejudice was not justified in view of the findings below as to petitioner's good faith and efforts to comply with the production order, and in view of constitutional considerations which bear on this question. Pp. 357 U. S. 208-213.

100 U.S.App.D.C. 148, 243 F.2d 254, reversed, and cause remanded.

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