## Facts

- The United States brought a civil antitrust action against International Business Machines Corporation (IBM) in the Southern District of New York.
- In discovery, the government sought documents IBM had previously produced in separate antitrust litigation brought by Control Data Corporation (CDC) in the District of Minnesota.
- IBM had produced the documents in the CDC case under a protective order and asserted that the production did not waive attorney–client or work-product protections.
- In the government’s antitrust case, the district court entered Pretrial Order No. 5 directing IBM to produce the same documents and ruled IBM had waived privilege by producing them to CDC.
- IBM unsuccessfully sought interlocutory review of Pretrial Order No. 5; the court of appeals held it lacked jurisdiction under the Expediting Act to review the discovery order by appeal or mandamus.
- IBM continued to refuse production; the district court held IBM in contempt and imposed a contingent fine of $150,000 per day until compliance.
- IBM appealed the contempt order and also sought extraordinary writ relief; IBM’s counsel, Cravath, Swaine & Moore, separately sought to intervene and pursue review by inviting contempt sanctions against counsel.

## Issues

1. Whether the Expediting Act barred interlocutory appellate review of a civil contempt order entered to coerce compliance with a pretrial discovery order in a government antitrust case.
2. Whether the contempt sanction was civil (coercive and avoidable by compliance) or criminal (punitive and immediately appealable).
3. Whether counsel could intervene or otherwise create an appealable posture to obtain immediate review of privilege and work-product rulings.

## Decision

- The court of appeals dismissed IBM’s appeal for lack of jurisdiction under the Expediting Act.
- The court characterized the contempt order as civil because it was conditional and designed to coerce future compliance with the discovery order.
- The court denied IBM’s petitions for extraordinary writs seeking to vacate the contempt order.
- The court dismissed Cravath’s appeal and rejected intervention-based efforts to obtain immediate review through contempt against counsel.

## Legal Principles

- A contempt sanction is civil when it is conditional and coercive, permitting the contemnor to avoid or terminate the sanction through compliance; a criminal contempt sanction is punitive and unconditional.
- In government civil antitrust actions, the Expediting Act precludes interlocutory appellate review of pretrial orders, and parties may not obtain indirect review by appealing a civil contempt order that merely enforces an unreviewable interlocutory discovery ruling.
- Claims of privilege and waiver underlying an unreviewable interlocutory discovery order generally must await review after final judgment when the Expediting Act applies.

## Conclusion

The court held that a coercive, conditional contempt fine imposed to enforce a pretrial discovery order in a government antitrust case is civil contempt and not immediately appealable because the Expediting Act bars interlocutory review, and neither mandamus nor counsel’s attempted intervention could be used to circumvent that jurisdictional limitation.


International Bus. Machs. Corp. v. United States, 493 F.2d 112 (2d Cir. 1973)