Sterling Drug Inc

Text (OCR of the scan at left; may contain errors)

IN THE MA TIERS OF BRISTOL-MYERS COMPANY, ET AL. - D. 8917 AMERICAN HOME PRODUCTS CORPORATION, ET AL. - D. 8918 STERLING DRUG INC., ET AL. - D. 8919 Dockets 8917, 8.918, 8.91.9. Interlocutory Order. Oct. 7, 1977 Denial of complaint counsel's motion for reconsideration of August 23, 1977, order denying on procedural grounds their application for review of a discovery ruling.

ORDER DENYING COMPLAINT COUNSEL S MOTION FOR RECONSIDERATION Complaint counsel seek reconsideration of our order of August 23 1977, which denied on procedural grounds their application for review of a discovery ruling requiring production of two memoranda of interviews with potential witnesses. The Commission s ruling is characterized as excessively rigid and formalistic, and the underlying issue as a "controlling question" within the meaning of Section 23(b) of our Rules.

That our August 23 ruling represented a strict application of the terms of Section 3.23 is conceded. Interlocutory appeals in general are disfavored, as intrusions on the orderly and expeditious conduct of our adjudicative process. Interlocutory appeals from discovery rulings merit a particularly skeptical reception, because particularly suited for resolution by the administrative law judge on the scene and particularly conducive to repetitive delay. In the absence of close and decisive supervision by the administrative law judge, the discovery process in any but the simplest case can be productive of endless dispute, sincere or contrived, to the point that any eventual remedial order relates only to history. Further, any perception on the part of our administrative law judges that the Commission will exercise broadly its undisputed authority to review interlocutory rulings wil tend toward the atrophy oftheir sense of responsibility for the impact oftheir rulings on the proceedings before them. These considerations, as noted, apply to interlocutory review generally and to review of discovery rulings particularly. Concededly, however, the Commission has by its Rule Section 3.23(a) afforded a special status to appeals from rulings which, as here, require the disclosure of Commission records. This provision must nonetheless not be understood as a signal that such appeals are favored, but as a Interlocutory Order 90 F. recognition of the Commission s duties under its organic Act to maintain a special oversight capacity, exercisable when circumstanc. es warrant, with regard to release of its records. See 15 U.8. C. 46(1), 50.

We find here no showing that the special concerns which Section 23(a) reflects are imperiled. Nor is any suffcient basis demonstrated for the invocation of Section 3.23(b) to supersede the informed discretion of the administrative law judge. If, as complaint counsel urge, the necessity for such rulings is likely to recur with some frequency as the trial progresses, we deem it all the more advisable that they be made by the offcer charged with its day-to-day conduct, absent a clear showing of substantial prejudice to one ofthe parties. It is therefore ordered, That the motion be, and hereby is, denied. Interlocutory Order