Eduard VON DER HEYDT, Libertas, S. A., and Ratio, S. A., Appellants, v. William P. ROGERS, Attorney General of the United States, and Ivy Baker Priest, Treasurer of the United States, Appellees.
No. 13855.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 31, 1957.
Decided Jan. 2, 1958.
Mr. Isadore G. Aik, Washington, D. C., with whom Mr. Sidney S. Sachs, Washington, D. C., was on the brief, for appellant.
Mr. Myron C. Baum, Attorney, Department of Justice, with whom Mr. George B. Sear Is, Attorney, Department of Justice, was on the brief, for appellees. Mr. Irwin A. Seibel, Attorney, Department of Justice, also entered an appearance for appellees.
Before Edgeeton, Chief Judge, and Bastían and Burger, Circuit Judges.
PER CURIAM.
The District Court granted appellee’s motion to dismiss appellant’s complaint for failure to produce documents and records for which an order to produce had been made. Before ruling on the motion, the District Court heard testimony for nine days and received numerous exhibits, all presumably bearing on the issues of materiality of the records sought, the possession and control of these records by appellant, appellant’s actions constituting refusal to produce, and so forth. The District Court made no findings other than its order of dismissal which it characterized as containing findings. However, on the record before us, consisting of a Joint Appendix of 942 pages digesting pertinent parts of a record of over 1500 pages, all covering substantial issues, we are unable to afford an adequate appellate review without specific findings in relation to the several issues of the case in order that we may know the basis of the District Court’s decision.
Appellant also urges that the statement of the trial judge shows error in assigning the burden of proof. The ¡burden of showing materiality of the .information and ability to produce it rests on the one seeking discovery. At .a point the burden of going forward with the evidence may shift to the party asserted to be in possession or control. Absent specific findings to be reviewed in the light of the evidence, we cannot •make an adequate assessment of this issue and our disposition of this appeal will afford opportunity for dealing with this.
As to the claim that the District Court -erred in denying appellant’s cross motion for discovery, we find no abuse of discretion.
Remanded with instructions.
. “All documents which were called for by the Court’s order not having been produced, and the plaintiffs not having satisfactorily shown to the Court that such documents do not exist, and the plaintiffs not having satisfactorily explained to the Court why they have not been produced; and the pattern of the conduct of the plaintiffs’ duly authorized representatives, but not including present counsel, clearly showing an unwillingness on their part to make a full disclosure to the defendants; and the plaintiffs’ answers to the defendants’ interrogatory No. 23 being too vague and wholly insufficient since the ■answers furnish no details as to any specific documents, I find that the discovery order of this Court of February '9, 1956, has not, in good faith been complied with.”