Kellogg Company

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IN THE MATTER OF KELLOGG COMPANY, ET AL.

Docket 8883. Order Sept. , 1975 Denial of respondents' joint application for review of administrative law judge order of July 15, 1975, denying their joint motion to nullify his order of June 19 1975, granting complaint counsel's application for taking of depositions. Administrative law judge directed, after consultation with parties, promptly to establish schedule for trial with certification to Commission of report on status of matter in 30 days.

Appearances For the Commission: Catherine A. Winer, Anthony L. Joseph, David M. Malone, Lawrence B. Bernrd, Edward M. Shumsky, Richard F. Silvestri, Noel W. Kane and Robert W. Doyle, Jr. For the respondents: Edwin Rockefeller, Bierbower Rockefeller Wash., D. AR. Connelly and Robert D. Jaffe, Cravath, Swaine & Moore New York City, for Kellogg Company. Edward F. Howrey, David Murchison and Ralph Savarese, Howrey, Simon, Baker & C.L Whitehill &J.J.Murchison Wash., D. RR. Heer and F. Finn Robert L. Fulgency, Minneapolis, Minn., forJenko Minneapolis, Minn. General Mils. R. MacCrate and Jeffrey I. Zuckerrum, Sullivan & Cromwell New York City, Clifford, Warnke, Glass, McIlwain & Finney, Wash., D. Peter J. DeLuca and Bruce L. Bozeman White Plains, N.Y. for General Foods. C. McKinney, Mark M. Fefatwole and Peter Sonderby, Chadwell, Kayser, Ruggles, McGee Hastings Chicago, Ill., and Barnett P. Ruttenberg, Chicago, I!l., for Quaker Oats. J. Robert O'Brian Battle Creek, Mich.

ORDER DENYING JOINT Application FOR REVIEW The administrative law judge, by order dated July 15, 1975, denied respondents' joint motion to nullify his order of June 19 , 1975, granting , 650 Order complaint counsel's application for the taking of depositions. On .July 25 1975, the Commission denied an application by General Mils, Inc., for a stay of the commencement of complaint counsel's deposition program pending respondents' appeal from the discovery order of July 15 , 1975. On Aug. 1, 1975, the law judge denied respondents' joint request for a determination that the order raised issues which met the criteria for interlocutory review set forth in Section 3.23(b) of the rules of practice. Respondents claim that the law judge s refusal to grant their request for a determination under Section 3.23(b) was an abuse of discretion and that the Commission has the inherent power to review any ruling by an administrative law judge. However, as the Commission has already ruled in this case the Administrative Law Judge has broad discretion in controllng the conduct of adjudicative proceedings, and his rulings wil be reviewed only in cases of clear abuse." Order Denying Applications for Review, May 29, 1974, p. 3. Respondents have not made such a showing.

Complaint counsel' s deposition schedule is undoubtedly extensive but the law judge has found that the information sought is "highly relevant" to the allegations in the complaint and that the depositions may facilitate the trial of this matter. He has also found that r d Jiscovery of the information known to individual employees of respondents is available only through personal confrontation with these individuals," and ,hat the discovery could not be accomplished by voluntary methods order denying respondents' joint motion to nullfy the order of June 19, 1975, for the taking of depositions requested by complaint counsel, July 15, 1975, p. 3. We cannot find that the law judge abused his discretion in making these determinations. However we do not overlook respondents' unanswered assertion that at initial pretrial hearings in August 1972 complaint counsel indicated a need for only limited further discovery. We are concerned that more than three years have elapsed since the complaint issued in this matter. Under these circumstances, measures must be taken to assure that any remaining discovery is completed as expeditiously as possible. It is ordered That respondents' joint application for review of the order of the administrative law judge, dated July 15, 1975, be, and it hereby is, denied;

, after It is further ordered That the administrative law judge consultation with the parties, promptly establish a schedule for trial and that he certify to the Commission a report on the status of this matter in 30 days.

Order 86 F.