Pearl Brewing v. Jos. Schlitz Brewing

Citation: ''Pearl Brewing Co. v. Jos. Schlitz Brewing Co.,'' 415 F. Supp. 1122 (S.D. Tex. 1976).

In this complex antitrust suit alleging anticompetitive conduct among beer manufacturers, wholesalers, distributors and retailers in Texas, two of plaintiff's consultants designed an econometrics model to analyze various conditions in the Texas beer market. Sophisticated computer programs were utilized to test and process the data obtained from the model. Dr. Massy, plaintiff’s economic consultant, was to testify concerning this information at trial to prove anticompetitive conduct.

Before trial, the plaintiff furnished the defendant with the computer output of the test results, and offered to make Dr. Massy available for deposition. The defendant claimed that this was

inadequate, and moved for further discovery on the following matters:


 * (1) access to all documentation and underlying data of each computer program;


 * (2) depositions of the two computer experts not scheduled to testify at trial, because Massy did not have the technical expertise to explain the intricacies of the computer program; and,


 * (3) the existence of alternative computer models rejected by the plaintiff, in order to test the reliability of the one used.

The court first cited the Federal Rules of Civil Procedure as providing for the production or availability for inspection and copying of "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonable usable form. The court held that this rule provided for discovery in the computer age. However, defendant's request for the documentation of each program's underlying codes and contents went far beyond Rule 34 discovery of printouts of records kept in the normal course of business.

Thus, defendant's request would have to fall within the "exceptional circumstances" language of the Federal Rules of Civil Procedure, Rule 26(b)(4)(B). The court discussed that section at length, noting that the rule was adopted to abolish the notion that expert information was protected as either privileged or as work product. The question thus narrowed to what information is unreasonable or unfair to require the defendant to obtain for himself.

Here, the defendant sought to discover the underlying bases for the mechanical tests and procedures that either support or refute Massy's testimony. Massy was an economics expert, and not a computer expert. He could not testify about the technicalities of computer operations. Therefore, without obtaining the underlying program, and the right to depose the two computer experts, the defendant would have to expend huge amounts of time, money and resources to comprehend the significance of the programs as components of Dr. Massy's trial testimony. The court concluded that this would be patently unfair, and thus the case fell within the “exceptional circumstances" language of Rule 26(b)(4)(B).

Defendant's requests for access to the computer programs and the opportunity to depose the two computer experts were granted. Since the defendant was not able to prove exceptional circumstances for discovering plaintiffs programs, this request was denied.