Full opinion text
DONALD RUSSELL, Circuit Judge. This is a products liability case. On the eve of its trial, default judgment on liability was ordered by the District Court against the defendants-manufacturers under Rule 37(b), Fed.R.Civ.P., 28 U.S.C., on the basis of a finding of failure to comply with an oral order in discovery. The District Court thereafter submitted the single issue of damages to a jury, and judgment was entered on the jury verdict. The defendants have appealed, charging error only in the grant of default judgment on liability. We reverse. I The action arose out of an automobile accident in which the plaintiff concededly received serious permanent injuries. At the time the plaintiff was driving a Volkswagen Beetle owned by his companion, Miss Wobbeking. The car was about a year old and had been driven approximately 17,-000 miles. It had been previously involved in another accident in September of the year before, as a result of which it had received considerable damage to the front end. The accident, which is the subject of this action, occurred at about 6:30 on the morning of April 1,1973. The plaintiff and Miss Wobbeking, both of whom were living at the time in Washington, had met at about 8 o’clock on the preceding evening of March 31st in Washington and had then gone in the Beetle to a party at the home of a friend in the environs of Washington. They remained at this party until about midnight. While there, the plaintiff testified by deposition that he drank two glasses of wine. Miss Wobbeking, who had taken a bottle of wine with her in the car, apparently drank sufficient at the party, according to her own deposition testimony, to be tipsy. The plaintiff and Miss Wobbeking proceeded directly from this party to the home of James Brown in Occoquan, and visited there until 3 or 4 o’clock on the morning of April 1. The plaintiff testified in his deposition that, while wine was available at this party, he did not drink any. When they left the Brown home, the plaintiff and Miss Wobbeking intended to return to Washington by way of Interstate Highway 95. However, the plaintiff, as he drove onto Interstate 95, turned south toward Richmond instead of north toward Washington. It was not until he had passed Fredericks-burg, Virginia, and was near Richmond, Virginia, that he discovered his mistake. He then turned back toward Washington and it was on this return trip at a point about seven-tenths of a mile north of Route 3, in the northbound lane, approximately one mile west of Fredericksburg that the accident occurred. The circumstances of the accident were detailed by the plaintiff in his deposition given in the early months of the litigation. He described the night of the accident as “lousy,” marked by heavy rains and strong and gusty winds. During the night he said he had experienced no difficulty in the operation of the car, other than that occasioned by the strong winds. In fact, he described the vehicle’s performance: “[EJxcept for the wind factor, it was fine.” His account of the accident itself was: “ * * * Driving along, I passed a car, pulled back into the right-hand lane. The car was being kind of buffeted about by the wind, you know, Volkswagens, if you have ever driven them, they can be pushed sideways. “Driving along and hit by the especially strong gust of wind on the driver’s side, I lost control, went off the road and rolled over.” The plaintiff estimated his speed as he passed the car at between 50 and 60 miles an hour. The occupants of the car passed, however, told the officers who investigated the accident immediately after it occurred that their car was traveling at a speed of about 70 miles an hour when they were passed by the plaintiff. Within twenty-four hours after the accident, Robert K. Stitt, III, an attorney in Pittsburgh, Pennsylvania, was employed on plaintiff’s behalf, by the latter’s brother. This attorney began an immediate investigation of the accident. He took possession of the car itself, had it moved to Pittsburgh, and kept it under his control in an open garage for more than two years. Within a week he had interviewed one of the state troopers who had investigated the accident and knew the version of the accident as given by the occupants of the car which was passed by the plaintiff just before the accident. It was not, however, until some eight months after the accident that Stitt first notified the defendants, the manufacturer and the distributor of the car, of the accident, or made any claim against them on behalf of the plaintiff. When he did communicate with the defendants, Mr. Stitt gave the defendants no details of the accident. This is obvious from the defendants’ reply to Mr. Stitt’s letter. In this reply the defendants wrote that “this is the first indication we have of any difficulty which your client, John Wilson, may have experienced on April 1, 1973, we would appreciate any and all facts, reports, records, photographs, etc., which you may have to substantiate his claim so that we may be given the opportunity to evaluate it and discuss future handling with you.” Stitt did not reply to this letter. Actually the defendants received no further communication about plaintiff’s claim from Mr. Stitt or from anyone else until March 28, 1975, when this action against the defendants was filed, two days before the time when the claim would have been barred. In the meantime, Mr. Stitt had been convicted of “insurance fraud” and had been suspended from the practice of law. His brother, who seemingly had taken his affairs over, then transferred this case to other counsel for the plaintiff, one of whom is counsel prosecuting this action on plaintiff’s behalf. In his complaint, the plaintiff alleged merely that “a defect in the design, manufacture and assembly” of the vehicle, manufactured and marketed by the defendants, caused it “to become unstable, go out of control, strike a guard rail * * * roll over and injure” plaintiff. He made no effort to identify in his complaint the car’s specific defect which, under his theory of the action, was responsible for the.accident. He sought recovery both under strict liability and breach of warranty. The defendants answered the complaint, denying liability on a number of grounds. After the defendants answered the complaint, the plaintiff filed a Notice to Produce, addressed to the defendants. The defendants directed Interrogatories to the plaintiff. In their Interrogatories, the defendants sought to ascertain from the plaintiff, among other things, the basis of his claim, or, as they phrased it, “the relevant area of inquiry,” by which they meant the specific defect in the car on which the plaintiff relied. The defendants filed on May 30, 1975, formal objections to the plaintiff’s Notice to Produce. The defendants concluded their objections with this statement: “As required by Local Rule of Court 11(N) counsel have met in a bonafide effort to resolve the objections raised. Defense counsel have asked plaintiffs’ counsel to define the relevant areas of inquiry, and have agreed to respond to the Motion to Produce when the relevant areas have been ascertained.” The plaintiff, on the other hand, neither answered nor filed any objections to the defendants’ Interrogatories, which had been filed on June 6, 1975 and June 23, 1975; he simply ignored them. It is stated in the record by defendants’ counsel and not disputed by the plaintiff, that the defendants several times importuned the plaintiff to answer their Interrogatories, to which he had filed no objections. The defendants, it is claimed by the defendants, were promised without avail answers by the plaintiff over a period of almost four months. Whatever the circumstances, the plaintiff ignored the Interrogatories filed by the defendants for almost four months. In the meantime, the District Court had ordered all discovery completed by November 15, 1975, in anticipation of trial on January 12, 1976. Concerned that the persistent delay of the plaintiff in answering their Interrogatories might preclude any meaningful discovery on their part within the timetable fixed by the Court, since they did not know the exact defect or defects on which the plaintiff relied, or the names of any expert witnesses on whom he might rely, to prove the claimed defect or defects, the defendants moved on August 25, 1975, and September 23, 1975, for an order compelling answers by the plaintiff to their Interrogatories. These motions resulted in an order of the Court dated September 23, 1975, requiring the plaintiff to answer the defendants’ Interrogatories within six days. The plaintiff ignored this order of the Court as he had earlier ignored the Interrogatories addressed to him. In this posture of the discovery proceedings, the defendants moved for dismissal. After a hearing the District Court entered a second order commanding the plaintiff to answer the Interrogatories of the defendants on or before October 20, 1975. Finally, on October 20, 1975, in compliance with this second order to answer, the plaintiff filed sworn answers to the defendants Interrogatories. In the meantime, the plaintiff, for his part, had filed on October 10, 1975, a Motion for Order for Production of Documents by the defendants under his Notice previously filed. As noted, the plaintiff had been in long default in answering the defendants’ Interrogatories and had ignored, without offering any excuse, the Court’s order of September 23 requiring him to answer defendants’ Interrogatories. He, also, ignored the statement of the defendants in their objections to his original Notice to Produce as filed on May 30, 1975, that whenever the plaintiff would, in answer to their Interrogatories, indicate the “relevant areas of inquiry,” to plaintiff’s claims, they would produce the appropriate documents and material. Understandably, the Court under these circumstances, refused the Motions to Produce, filed by the plaintiff on October 21, 1975, and October 28, 1975, respectively. At an unreported pre-trial conference on November 4, 1975, the Court considered the defendants’ objections to the Amended Motion to Produce and orally directed the defendants, apparently in conformity with “agreement of counsel in chambers,” to make discovery “largely limited to * * * evidence having to do with variously roof intrusion and flexible coupling tests.” It was only with the belated filing of plaintiff’s answers to the defendants’ Interrogatories that the defendants were advised for the first time of the specific nature of plaintiff’s claim, the alleged defects in the car on which he relied, the expert witness he intended at that time to use, the persons who, since the accident, had had possession of the car, and the names of the persons who had examined the car in an effort to determine what, if any, defects there might be in the car. After receiving plaintiff’s answers, the defendants proceeded promptly with further discovery. They deposed Harris, who was the only expert witness listed by the plaintiff. They attempted to depose Stitt, who had had possession of the car from the time of the accident up to six months after suit was filed. They had issued a subpoena for him and turned it over to the marshal’s office in Pittsburgh for service. The marshal had learned, however, that Stitt had moved from his former address, but had experienced difficulty in ascertaining where he had moved. The defendants sought assistance from counsel for the plaintiff but the latter replied that the location of Stitt was “the prerogative of Defendant’s counsel.” In any event the defendants were unable to locate or serve Stitt before the time fixed for discovery had expired. Moreover, three days before discovery was to be completed, plaintiff orally advised the defendants he expected to use two additional expert witnesses. Faced with this situation, the defendants promptly moved to extend discovery. The plaintiff opposed the motion. A hearing on the motion to extend discovery was held on November 25, 1975. The defendants argued that they had been delayed and prejudiced in their ability to proceed with discovery by the unwarranted delay by the plaintiff in answering their Interrogatories and in providing them with any specific information on plaintiff’s claim and the names of witnesses he expected to use to prove his claim. By way of reply, the plaintiff sought to excuse his failure to answer defendants’ Interrogatories within time and his ignoring of the Court’s order to answer. He justified such failure on the ground that until he received the report of his expert Joseph Harris in October, 1975, he did not know of any defect in the car and could not answer the Interrogatories— or presumably oppose defendants’ motion to dismiss. In offering this excuse, he also conceded that until October 20, 1975, the defendants were ignorant of plaintiff’s specific claim of defect, or the “area of inquiry” to which the Interrogatories and Notice to Produce were relevant. It is of interest, particularly in the light of subsequent developments in the case, that when the plaintiff offered this excuse for his default in answering defendants’ Interrogatories and for delay in identifying the claim of car defect on which he grounded his cause of action, the Court expressed its amazement at the action of the plaintiff “of coming into court and asking for an adjudication of plaintiff’s rights when plaintiff himself doesn’t even know why he is in court.” It made it clear that “the biggest problem” it had had with the case arose out of the fact that until “sometime in October” the plaintiff said that he “had no idea what defect did cause the accident.” It absolved the defendants of any responsibility for delay, observing, “I don’t see how defendants can be expected to have prepared a defense when the plaintiff had not even prepared an offense until last month.” It added significantly that “the genesis of the discovery problems in this case lies with the failure of plaintiff to come forward until last month to disclose what his case was [about],” restating what the plaintiff had already conceded, i. e., that “[t]he reason for plaintiff’s not answering it [the defendants’ Interrogatories] and saying what his case was all about was * * * that plaintiff did not know.” Initially, the Court ruled that the defendants would be given additional time to serve and depose Stitt but refused to reopen discovery to enable the defendants to depose the two new expert witnesses of the plaintiff, ruling instead that the plaintiff would not be permitted to use such witnesses at trial. Upon motion of the plaintiff for reconsideration, the Court, however, reopened discovery. A final pre-trial hearing was held by the Court on March 26, 1976. The hearing was not reported. It is agreed, however, that at this hearing, counsel for the plaintiff raised with the District Court for the first time what he considered the failure of the defendants to comply fully with his Amended Motion to Produce, as reviewed by the Court at the earlier hearing in November. He went on to identify the items he claimed had not been produced by the defendants by reading a letter dated March 15, which he had addressed to counsel for the defendants and the reply of defendants’ counsel to that letter. In his letter plaintiff’s counsel identified the information which he claimed the defendants had not produced as “[m]ovies and written reports and information concerning dynamic rollover tests on Volkswagen Beetles, 1966, through 1973” but not “drop tests and sled tests, movies” which had been produced, “[a]ll design and/or engineering guides for body structure and design of 1972 Beetle support posts and roof,” and information requested in paragraphs 6, 10, 13, 18 and 23 of plaintiff’s amended motion to produce. To this letter of the plaintiff, counsel for the defendants replied that all rollover tests which were then available had been produced. Counsel stated that there were “other tests done in the initial stages of the design of roof” and old tests of the steering system, but all such tests were no longer available in the files of the defendants. He, also, answered the other points in the letter of plaintiffs counsel. After the two letters were read, the District Court inquired the identity of the person who had supplied local counsel for the defendants with the material produced. Upon being advised that Ian Ceresney, defendant’s New York counsel, was the individual who had furnished the information, the Trial Court issued a citation for contempt against Mr. Ceresney, returnable on March 31,1976. In the citation itself, there was no indication that the granting of default judgment would be considered and disposed of at this contempt hearing, though it was the statement of counsel for the plaintiff [Mr. Wallace] that the Trial Court remarked at this hearing that, if it found a failure to produce, “Mr. Wallace, you win the case. Do you understand that? You win the ease.” Later, the Trial Court stated that, while no formal notice of a hearing on such a motion had been entered, it had advised counsel that if it had found a deliberate withholding of information, the Court “was going to consider and very likely would enter default judgment.” Counsel for the defendants did not take exceptions to this statement of the Trial Court but emphasized that they had not understood that the Court intended* to consider possible default judgment at the time it took up the contempt citation against Mr. Ceresney, particularly since only three days’ notice was given on the contempt hearing. Mr. Ceresney appeared as directed at the contempt hearing on March 31, 1976, and testified. When he completed his testimony, counsel for the plaintiff stated to the Trial Court that since “there [was] no pending motion before this Court for a default judgment, so I orally make a motion, your Honor.” At this point, counsel for the defendants requested the opportunity to present another witness. Jurgen Heise, a safety test engineer employed by the defendants, was then sworn and testified. At the conclusion of his testimony, the District Court proceeded orally to grant judgment under Rule 37(b) on the issue of liability against the defendants. Counsel for the defendants strenuously objected to the oral order for default judgment. He argued that he had not been properly advised that such action would be considered at the contempt hearing and urged that the defendants be given “a full scale rehearing at which time I can present all of the evidence to show exactly what was done.” He complained that the District Court, in entering its order, had accepted “as true things which are not in evidence before the Court as being true.” He referred to the fact that, in its order, the District Court had mentioned only “flexible coupling and roof tests which [the Court] found that my client wilfully failed to give,” and he requested that the Court clarify with a more specific finding the “flexible coupling and roof tests” which the defendants were found to have withheld. All these objections and requests were dismissed by the Court with the statement that counsel could secure answers to his requests by referring to its “findings of fact and conclusions of law,” as transcribed by the court reporter. Within a matter of days after default was ordered and before trial, the defendants moved to reopen the contempt proceedings, to vacate default judgment theretofore entered and to permit a full hearing on the propriety of default judgment. This motion was denied and the cause proceeded to trial thereafter on the sole issue of damages. After a trial on damages, resulting in a verdict for the plaintiff in the sum of $1,050,000, the defendants made another motion, this time for a new trial, arguing that the grant of default judgment was erroneous. They submitted affidavits of Ulrich Seiffert, Chief Test Engineer at Volkswagen, Jurgen Heise, Safety Test Engineer at Volkswagen, and John M. Oakey, Jr., trial counsel for Volkswagen, in support of the motion. The motion was denied, again orally. The defendants, also, moved under Rules 59 and 60 for a new trial. In passing on such motion, the Court first said: “Though adhering to its findings, the Court recognizes that the sanction imposed may be considered excessive, though the Court specifically does not so hold. Trial on the merits, however, should be denied only if no other sanction can serve the ends of justice as well.” It then granted a new trial on these terms: “(a) That defendants will reimburse plaintiff for all costs and counsel fees expended by plaintiff reasonably resulting from defendants’ failure to disclose, the amount thereof to be approved by the Court upon proper submission; “(b) That plaintiff be provided sufficient funds to retain two lawyers accompanied by automotive engineers conversant in German and English, with complete authority and right to search the records of defendants for any material discoverable in this case. Such search, translations and duplication shall have the full cooperation. of defendants and shall be at no cost or expense to plaintiff; “(c) The new trial shall be limited to the question of liability except that, at the option of plaintiff, the question of damages may again be put in issue. In the absence of the exercise of such option by plaintiff, judgment will be entered on a plaintiff’s verdict with interest from the date of judgment heretofore entered herein, 6 April 1976. “(d) That the firm of Hertzfeld & Rubin, P. C., nor any members or associates thereof shall appear as counsel for defendants nor shall they participate in any way in discovery or otherwise as counsel for defendants in this action.” These terms the defendants found unacceptable and chose to appeal from the judgment entered on the verdict in favor of the plaintiff, challenging only the grant of default judgment. II The initial issue in the consideration of this appeal concerns the power of the Trial Court to grant default judgment under Rule 37(b), Fed.R.Civ.P., and assuming it has such power, the scope of judicial review. The power to impose sanctions under Rule 37(b) for failure, after court order in discovery proceedings to produce documents, is discretionary with the Trial Court. It is not, however, a discretion without bounds or limits but one to be exercised discreetly and never “when it has been established that failure to comply has been due to inability, and not to wilfulness, bad faith, or any fault of [the noncomplying party].” Particularly is the Court to act cautiously when the sanction imposed is that of default judgment, which is “the most severe in the spectrum of sanctions provided by statute or rule.” In that situation the Trial Court’s “range of discretion is more narrow” than when the Court is imposing other less severe sanctions. The reason for this narrower range of discretion is that the sanction of a default judgment, though “a rational method of enforcement of the discovery rules,” in an appropriate case, represents in effect “an infringement upon a party’s right to trial by jury under the seventh amendment” and runs counter to “sound public policy of deciding cases on their merits,” and against depriving a party of his “fair day in court.” Because of the importance of these constitutional and policy considerations, a leading text has stated that the exercise of the power should be confined to the “flagrant case” in which it is demonstrated that the failure to produce “materially affect[s] the substantial rights of the adverse party” and is “prejudicial to the presentation of his case.” This is so because a default judgment should normally not be imposed so as “to foreclose the merits of controversies as punishment for general misbehavior” save in that rare case where the conduct represents such “flagrant bad faith” and “callous disregard” of the party’s obligation under the Rules as to warrant the sanction not simply for the purpose of preventing prejudice to the discovering party but as a necessary deterrent to others. Even in those cases where it may be found that failure to produce results in the discovering party’s case being jeopardized or prejudiced, it is the normal rule that the proper sanction “must be no more severe * * * than is necessary to prevent prejudice to the movant.” Accordingly, in determining whether to impose such sanction, the needs of the discovery party must be evaluated as well as the nature of the non-compliance and the Trial Court must consider “how the absence of such evidence [not produced] would impair [the other party’s] ability to establish their case” and whether the non-complying party’s “conduct [in not producing documents] would deprive [the other party] of a fair trial.” And since every exercise of judicial discretion “must find its basis in good reason,” the Trial Court, when granting such sanction, “should clearly state its reasons so that meaningful review may be had on appeal.” In re Professional Hockey Antitrust Litigation (E.D.Pa.1974) 63 F.R.D. 641, rev’d., 3 Cir., 531 F.2d 1188, rev’d. 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), illustrates the procedure to be followed when a Trial Court, in accordance with the foregoing principles, exercises the power to grant the sanction of default judgment. There the Trial Court found that the Interrogatories addressed to the plaintiff and unanswered were “crucial interrogatories” which went to the heart of the discovering party’s defense and were thus clearly material; that the plaintiff admitted on a number of occasions that he had available to him the information required for the Interrogatories; that the plaintiff had been given at least five extensions, some made out of time and granted with warnings of possible sanctions, for answering the Interrogatories, always on the representation, never honored, that, if granted, answers would be duly filed; that these delays had forced at least three postponements of a trial date; and that any lesser sanction, such as denial of right in plaintiff to prove the matters not responded to by it, was not a reasonable alternative to default judgment, since the practical effect of denial of right to prove the material by the plaintiff would be to make imperative judgment in favor of the defendants. The Trial Court carefully evaluated “the needs of the discovering party,” considered the effect on non-compliance on the “ability [of the defendants] to establish their case” and concluded that no remedy other than default judgment would “prevent prejudice to the movant.” These findings, fully detailed in the Trial Court’s order, clearly supported the grant of a default judgment “by reason of [plaintiffs’] ‘flagrant bad faith’ and their counsel’s ‘callous disregard’ of their responsibilities.” Recognizing that the power to grant sanctions under Rule 37(b) is discretionary with the Trial Court, it follows that the exercise of such power will only be disturbed on appeal for abuse of discretion. This does not mean, though, that an appellate court should automatically affirm such exercise of discretion. It has been said that an appellate court “would be remiss in [its] duties if [it] chose only to rubber stamp such orders of lower courts.” On the contrary, it is obligated “to consider the full record” as well as the reasons assigned by the Trial Court for its judgment, and to reverse the judgment below, if after such review, the appellate court “ ‘has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.’ ” III The basis of the District Court’s decision granting default judgment on liability against the defendants was a finding of “a wilful and deliberate attempt, successful attempt, on the part of the defendant^] in this case to withhold information properly discoverable.” The Court then proceeded to make “clear for the record on appeal,” exactly what it found had been “properly discoverable” but improperly withheld by the defendants, on which its decision rested. This specific information was stated to be “evidence having to do with variously caused roof intrusion and flexible coupling] tests.” At the hearing on the motion to reconsider the defendants emphasized this specific identification of the information found to have been improperly withheld. The Court then broadened at that hearing the finding against the defendants to include “a wilful and deliberate failure to come forward with the names of the cases that are properly discoverable.” The decision below thus rests solely on a finding of a failure to disclose properly discoverable “roof intrusion and flexible couple[ing] tests” and “the names of the cases.” In reaching its conclusion of wrongful withholding of discoverable information, relating particularly to roof intrusion and flexible coupling tests, the Court did not, it must be noted, actually find that there are any additional tests. After observing that the “defendant says that the records don’t exist,” the Court said; “ * * * That may be. It may be they don’t exist, but they haven’t convinced me that they don’t exist. “I am not convinced that they don’t exist. It was incumbent upon them, it seems to me, particularly under Rule 37, though not under contempt — it was incumbent upon them to convince the Court that the records don’t exist.” At the hearing on the motion to reconsider, the Court began the hearing by laying out for the parties why it had found that the defendants had not convinced it that they were not deliberately withholding “discoverable” information: “THE COURT: Perhaps it would help you by getting right to the heart of it. I don’t believe those people — largely, it’s a matter of credibility, and I didn’t believe what they were telling me about the nonexistence of tests or the methods that they used to determine where they were or what they were, or the non-existence of any suits, that Mr. Ceresney filed and the methods used to determine whether or not he disclosed — I simply thought that they were lying to the Court. So it’s really not a matter of judging from what they said, what the Court might reasonably conclude because the Court didn’t believe what they were saying.” At the end of this same hearing, the Court reiterated the conclusion, stating, “I had responsible people representing Volkswagen to come into court and, so far as I am concerned, though it is not proof beyond a reasonable doubt, as far as I am concerned they attempted to mislead, they attempted to deceive, they attempted to deceive and have the Court believe this which they wanted the Court to believe without quite seeing it. I would perhaps have had a little more respect for them had they baldly lied; but, they deceptively testified.” In its later order, granting a new trial conditionally, the Court stated that its findings of deliberate withholding resulted from “the indelible impression, * * * forced upon the court by the evasive, contradictory and equivocal testimony heard on 31 March, 1976.” It would appear from all this that the Court was resting its findings against the defendants largely, if not wholly, on its opinion of the credibility and trustworthiness of the testimony given by the representatives of the defendants at the contempt hearing. However, even before it heard that testimony, the Court had apparently reached an unfavorable opinion on the credibility of at least one of the witnesses at such hearing, Ian Ceresney. This was evident in the unusual way in which the Court greeted Ceresney when he presented himself as a witness; it was made even clearer by the Court’s critical comments made during interruptions in Ceresney’s cross-examination. Thus, when Ceresney presented himself and was sworn at the contempt hearing, the Court at once addressed him, severely admonishing him that he [Ceresney] was “under oath,” and adding in language that must be construed as menacing, that “if investigation revealed that it [Ceresney’s testimony] is untrue, the Court expects to have you prosecuted for perjury.” Hardly had it concluded with this opening threat of possible criminal prosecution, than the Court proceeded to advise the witness, “I will not sit at that trial but I will take the necessary steps to have you prosecuted for perjury.” Not content with these two ominous warnings to the witness, the Court, in concluding its opening remarks to the witness, emphasized anew that “if you fail to tell the truth, the whole truth and nothing but the truth, this Court will initiate proper procedures to have you prosecuted for perjury and punished.” There were, however, certain facts and circumstances occurring in the proceedings before the contempt hearing itself began, which appeared to pre-condition critically the Court’s attitude toward the defendants and toward the credibility of their witnesses at the contempt hearing and which later entered substantially in the Court’s findings and conclusions. (1) The first of these circumstances was the act of defendants’ counsel in signing the answers to the plaintiff’s Interrogatories on behalf of the defendants some months before the contempt hearing.” The importance of this act in the Court’s findings and its conclusions is demonstrated by the fact that the Court singled this item out as the very first fact which in its opinion justified its findings and the results it reached. The Court began these findings by stating that by this action Ceresney had “abandoned his role as lawyer” and had committed “a gross mistake on the part of the lawyer.” As the Court proceeded with its oral findings on March 31, it returned repeatedly to this “most questionable” action by Ceresney, which it found to be “contrary to Federal Rules of Procedure, contrary to the conduct any lawyer ought to permit himself to be involved in.” It declared that whether Ceresney had “a corrupt motive” in engaging in this “gross departure from anything that I [the Court] have ever known of as accepted practice on the part of a lawyer, * * * the result of it is the same no matter what the motive might be.” The inevitable result of such action, it proceeded to add, was a situation in which the person who makes oath to the truth or falsity of certain matters has a perfect out, whereby he and his client could escape responsibility for any misstatement and at the same time deceive or mislead the opposing party and the Court. Later, in its opinion, the Court even seems to suggest that such conduct represents the “proper point for me to do justice * * * because by using that tactic, in addition with the strategy of failing to disclose, there is a substantial tendency to obfuscate and confuse, make it difficult for the Court and for the lawyer to know exactly what is going on.” And the Court’s concluding paragraph in its opinion and findings after the contempt hearing is devoted entirely to this so-called “totally unacceptable conduct of defendants’ counsel. It is clear from the Court’s language and its findings — from the fact that it began and concluded its opinion and findings with a criticism of this action and that it repeatedly returned to it during its statement of its findings — that this act of defendants’ attorney was regarded by the Court as a vital issue, which had a substantial influence on its conclusions. Yet the Court was in clear error in finding this action of defendants’ attorney in signing and verifying on his client’s behalf the answers to the interrogatories to be a “gross departure * * * from accepted practice,” “contrary to Federal Rules of Procedure,” or unethical professional conduct engaged in solely for purposes of deception or obfuscation. Contrary to the view of the District Court, Rule 33, Fed.R. Civ.P. expressly provides that interrogatories directed to a corporate party may be answered “by any officer or agent, who shall furnish such information as is available to the party." This language has been uniformly construed to authorize “answers by an attorney” for the party. The mere fact that defendants’ attorney signed and swore to the interrogatories was accordingly no justification for the Trial Court’s findings, which reflected unfairly on Ceresney and his trustworthiness and which manifestly was crucial in the Trial Court’s ultimate decision to grant default judgment. In its later oral ruling denying reconsideration, the Court referred to another circumstance unrelated to the testimony at the hearing, but one which seemingly likewise seriously influenced its conclusions. This involved what the Court deemed to be the long failure and default of the defendants in complying with the Amended Motion. Thus, near the end of its ruling on reconsideration, it expressed regret at having been forced to grant default judgment on liability “because I don’t think that it is fair for someone to have a default judgment when there is a meritorious defense, and I think there is a meritorious defense in this case; but I was faced with the situation of almost a year of failure to disclose.” It is obvious from this somewhat apologetic explanation of its action that the Court was laboring under the definite impression that for almost a year the defendants had been pursuing a purposeful and deliberate strategy of frustrating discovery under the Motion to Produce. It is true, of course, that the plaintiff filed his Motion to Produce in May, 1975 and the hearing of March 31 was “almost a year” later. But the hearing on March 31 was not on the original Motion to Produce, filed in May, 1975, but on the Amended Motion filed on October 15, 1975. Moreover, the defendants had not been guilty of any blameable “failure to disclose,” either as to the original Motion or the Amended Motion. The defendants, though they objected within time to the Motion, always expressed a willingness, as the plaintiff recognized and stated in his Amended Motion to Produce filed October 15, 1975, to attempt to comply when the “areas of inquiry” had been laid out by the plaintiff and the relevancy of the items in the Motion could be determined. And the Court must have considered the defendants’ objections to the Motion to have been sound, and their expression of a willingness to comply when the relevancy of the Motion’s several requests were resolved, as made in good faith, for on three occasions in October, 1975, it refused preemptorily the plaintiff’s Motions to compel compliance by the defendants. Moreover, at the hearing on November 25, 1975, the Court had found expressly that the party responsible for any delay in discovery was the plaintiff and not the defendants, and, as we have seen, had found that the delay was due to the plaintiff’s failure to state the defect or defects on which he relied for a claim. In fact, it was not until November 4, 1975, that it could be said what items in the plaintiff’s Motion to Produce the defendants were required to produce. There is thus no basis whatsoever for charging the defendants with a year’s “failure to disclose.” The Court, again, went outside the testimony at the hearing on March 31 in resting its conclusion on a finding, repeated in its later rulings in increasingly strong terms, that the withholding of discoverable information was “part of trial strategy that New York counsel exercises” in all products liability cases filed against the defendants. Indeed, at the hearing on the motion to reconsider, the Court seemed to find a similarity between the conduct of the defendants in this case and the conduct of the defendants in the “Watergate” cases, declaring that Volkswagen, like the Watergate participants, had “participated in a pattern of stone walling, and they [meaning the defendants] haven’t seemed to learn.” In its order granting a new trial conditionally, it reaffirmed this finding, saying: “ * * * The Court is confirmed in its belief, having reviewed everything that defendants have filed, that Mr. Ceresney and his firm of Herzfeld & Rubin, P. C. of New York, have adopted non-disclosure as a means of defense in product liability defense claims against their principal client, the defendants herein.” This finding was based on the Court’s consideration of three other cases against the defendants, cited to it by the plaintiff prior to the contempt hearing. The relevant events surrounding the grant of default judgment in those three cases on which the District Court rested its finding of “pattern of stone walling” a la Watergate, by the defendants’ New York counsel, are in dispute between the parties. The differences between the parties were not reflected in proof in the contempt proceedings; they were brought out in the conflicting arguments of counsel, during which they gave their versions of the facts and circumstances giving rise to these defaults, or in the testimony of the defendants’ witnesses, based on hazy recollections and, in some instances, hearsay. There was no attempt to incorporate in the record the full records in the Rule 37 proceedings in the three cases or the exact circumstances under which two of the defaults ordered therein were vacated, so that the Court could fairly evaluate the circumstances of the three cases for itself. In one, the plaintiff cited only the reported decision (Bollard); in the other two (Christian and Richardson), the plaintiff had filed certified copies of the orders themselves, supplemented in one case with a hearing before the Court preceding the entry of the order. The circumstances in the three cases were quite different and did not conform to a “pattern.” In Bollard, the difficulty seems to have arisen out of the filing of several sets of answers, contradictory to each other, to the plaintiff’s interrogatories. In Christian, the defendants’ local counsel refused,though ordered to do so, to produce two sets of test records which counsel contended were privileged as confidential business records the disclosure of which would prejudice the defendants competitively. There was no contention that the defendants or their counsel had “lied” or engaged in any deception; the contention was that the defendants — or, at least, their counsel — had persisted in their claim of privilege after that claim was disallowed by the Court. In the Richardson case, the alleged default is not stated, though, as we note later, it was said that the ground for the Court’s action did not rest on any claim of “lying” or deception. When these cases were brought up during his examination, Ceresney attempted to give some explanation of the circumstances surrounding the sanction imposed in each of the three cases, though he was only speaking from recollection without any opportunity to refer to the records or to consult other members of his firm who may have been more intimately concerned with the specific case. In Christian, it was his recollection that the default judgment was vacated and a sanction in the form of a fine was imposed upon local counsel and specifically that New York counsel was absolved of blame and relieved of any censure in the case. In Richardson, he thought the difficulty concerned the failure of the defendants to produce for deposition two retired employees, whom the defendants claimed they could not produce. The final case was Bollard, where default resulted, according to Ceresney’s recollection, from failure to verify answers to interrogatories pursuant to an order of the court of which New York counsel were never advised by local counsel. The plaintiff, relying on accounts given him by attorneys for plaintiffs in one or two of these cases, gave in argument a different version of the circumstances of those particular cases. On the record in this case there was no way in which the District Court could evaluate these different versions, based as they are in many instancés on hearsay. If there had been a full hearing perhaps the exact circumstances under which the three default judgments were granted, and in two cases vacated, could have been inquired into and developed and the contradictions resolved, if the Court were inclined to rest, as it did, its decision at least partially on what it conceived to be the results in these other cases. When the exact circumstances of each case were unclear, as was the situation in connection with the three cited cases, we feel it was inappropriate to use such cases as authority for a finding of deception on the part of New York counsel. There was another and a more serious objection to the use of these cases for the purposes to which the District Court put them. What the plaintiff was attempting to develop by citing these cases, and what the Court purported to find from them, was a habit or pattern of conduct of “stone walling,” to use the Court’s term, by New York counsel in discovery proceedings. However, these cases, in their fragmentary and incomplete state — particularly as they were explained by Ceresney — provide a frail reed on which to predicate a finding of pattern or habit of improper professional conduct, and this is especially so in the light of the somewhat strict requirements for the proof of habit or pattern of conduct as established by both the Federal Rules of Evidence and by the authorities in general. It has been repeatedly stated that habit or pattern of conduct is never to be lightly established, and evidence of examples, for purpose of establishing such habit, is to be carefully scrutinized before admission. The reason for such an attitude toward evidence of habit is the obvious danger of abuse in such evidence resulting from “the confusion of issues, collateral inquiry, prejudice and the like,” or, as one court has phrased it, “the collateral nature of [such] proof, the danger that it may afford a basis for improper inferences, the likelihood that it may cause confusion or’operate to unfairly prejudice the party against whom it is directed * * *.” It is only when the examples offered to establish such pattern of conduct or habit are “numerous enough to base an inference of systematic conduct” and to establish “one’s regular response to a repeated specific situation” or, to use the language of a leading text, where they are “sufficiently regular or the circumstances sufficiently similar to outweigh the danger, if any of prejudice and confusion,” that they are admissible to establish pattern or habit. In determining whether the examples are “numerous enough” and “sufficiently regular,” the key criteria are “adequacy of sampling and uniformity of response,” or, as an article cited with approval in the Note to Rule 406, Federal Rules of Evidence, puts it, on the “adequacy of sampling” and the “ratio of reactions to situations.” These criteria and this method of balancing naturally follow from the definition of habit itself as stated in the Model Code of Evidence: “Habit means a course of behavior of a person regularly repeated in like circumstances.” While precise standards for measuring the “extent to which instances must be multiplied and consistency of behavior maintained in order to support an inference of habit and pattern of conduct, cannot be formulated,” it is obvious that no finding is supportable under Rule 406, Federal Rules of Evidence, which fails to examine critically the “ratio of reactions to situations.” Necessarily, as we have seen, regularity of conduct such as that charged against defendants requires some comparison of the number of instances in which any such conduct occurs with the number in which no such conduct took place. No such comparison was made or attempted in this case. It was recognized by the parties in their arguments before the District Court that the defendants have been involved in countless lawsuits including claims of products liability. Cornell University has prepared two monographs listing many of these cases and these monographs were in the possession of counsel for the plaintiff. Other than the three cases in which there were initial grants of default judgment (but in two of which it is argued by the defendants the judgments were vacated), counsel for the plaintiff interrogated Ceres-ney about eight cases in which it was testified no request for default judgment and seemingly no claim of want of attention to discovery requirements on the part of the defendants were made. In addition, the digest for the three years, 1972-5, lists some ten cases against the defendants, in none of which there appears to have been any claim of a strategy of deception in discovery on the part of New York counsel. Counsel for plaintiff, in one of his questions addressed to Ceresney suggested that in recent years there had been at least fifty cases against the defendants involving rollover propensity and at another point it was stated that some two hundred products liability cases had been filed in recent years against the defendants, and defended on their behalf by the same New York counsel as are involved herein. Compared with the large number of cases filed against the defendants, in which no claim of misconduct was apparently made, the mere fact that in three cases, especially in view of the paucity of exact information about them and that default seems to have been vacated in two of them, can hardly be thought sufficient to establish “regularity of response” so automatic as to represent habit or pattern. To make such a finding in this case on the incomplete and confused record we have would be to create what would be a rebuttable presumption in any and all subsequent products liability suits against the defendants. We do not think the proof before the Court was sufficient to impose that serious burden on the defendants and on their counsel, who presumably are reputable and respected members of the bar of the State of New York. In addition to these circumstances., which were largely outside the actual testimony at the contempt hearing, the District Court singled out certain parts of the testimony of Ceresney and Heise, which it found to be “evasive” and “contradictory” and which justified its finding that the two had “lied” and which supported its finding that the defendants had failed to convince it that additional tests and information did not exist. Thus, in his testimony, Ceresney had used the word “available” in testifying that the defendants had produced all the tests “available” to them. The Court criticized the witness for his use of the term “available.” It characterized the term “available” as a word craftily chosen by the witness in order to mislead and deceive the Court and parties. Such a term, according to the Court fell within the category of “evasive type words” or “weasel type words,” used as they were by the defendants “knowing full well what the import of them was, that is to say, that if you use a sufficient enough evasions, then you can’t be hooked.” This is so, the Court adds, “because the word ‘available’ means anything that a person wants it to mean”. It would seem that the Court’s conclusion that the defendants had not established — in fact, had not testified unequivocally — that there were no other tests in existence in their files rested to some extent on this use of “available.” Thus, it commented during the testimony: “I’ve been careful to note that there was no effort here that the Court can accept that they [the additional tests] are not in existence. Everybody has been most careful to use the word ‘available’.” It went further and added, as if it intended to hang its decision on the use of this term, that: “That lack of availability will probably prove very costly to Volkswagen.” It is plain that the Court gave entirely too much significance to the use of the word “available.” It is a term in common and accepted use in this context, both in judicial findings and in statutes, and no special significance can be attached to its use. Rule 33, Fed.R.Civ.P. prescribes that, in answering interrogatories, the party “shall furnish such information as is available to the party.” (Italics added) Rule 34, which deals with the production of documents, directs that, by way of response to a notice thereunder, the producing party shall produce such documents as are in his “possession, custody, or control.” The two Rules are equally inclusive in their scope. As the Court in Commonwealth v. Happnie (Mass.App.1975) 326 N.E.2d 25, 28-9, said, “availability” and “control” are both “words of art” and are “used to express the same thought.” We can find no basis whatsoever for charging the witness with deception simply because he has used a “term of art,” which both in common and in legal terms means the same as “control.” And this is especially so, since on at least six occasions prior to his use of the term “available,” the witness had testified as the Court declared he should have, i. e., that the defendants simply had no reports of such tests other than those produced. Thus, the witness testified earlier without qualification that “we [meaning the defendants] have provided everything that we have in response to a request [for roof intrusion and coupling tests].” Later he testified, in answer to a question about a particular roof test, “[t]here are no such test reports, period. There are no such films, period, other than what we’ve produced.” Again, he said, “[w]e have produced everything we have.” The record thus makes it absolutely clear that, whether the word “available” is a verbal salamander or not, and for that reason objectionable, the witness had not sought to use it in order to avoid a positive denial of the existence of additional tests other than those produced under the ¿greed terms of the Amended Motion and any finding to that effect or the use of such a finding as a basis for a broader finding that the witness had “lied” was clearly erroneous. The Court cited in its opinion another circumstance justifying the finding that this witness had “attempted to deceive” the Court and had “deceptively testified.” This second instance of resort to “evasive” or “weasel” words by Ceresney during his testimony related to the term “allegations.” In answering the request of the plaintiff for a list of the “[cjases in any other jurisdiction involving allegations of defective design of body structure” (later restricted to roof), the witness identified only one other case in which there were “allegations of defective design” of roof structure and he testified that he made such an identification by looking initially to the “allegations” of the complaint. The Court seized on the term “allegations,” as a “weasel” and “evasive” term, which it found to have been carefully chosen “to protect the witness from the consequences from his approach to the whole question of discovery.” Again, this objection to the witness’ language seems unfair. After all, the Amended Motion to Produce itself asked for cases “involving allegations of defective design” (Italics added) and we can see nothing improper or evasive in defendants’ answering it in the terms in which the request itself was phrased. We accordingly find no basis for attaching some evil purpose to the action of the defendants in using the term “allegations” in their answers in this connection or, for that matter, to the fact that they initially looked to the “allegations” of the complaint in answering the request of the plaintiff. And this is particularly so, since the witness testified that he had also examined such other records in his file as might indicate whether a case involved roof deficiencies and that his examination of the “allegations” of the complaints was only the first step in his examination of those cases where there was additional information in his file. What we have been discussing related to Ceresney’s testimony primarily. The Court, however, regarded with equal disfavor the testimony of defendants1 safety engineer Heise, who was the only other witness to testify at the contempt hearing. It finds his testimony “most shakey.” It supports this finding by specifying one part of the witness’ testimony. In describing the procedure followed by him in his search of the defendants’ test records, Heise testified that he went to a “computer-like” list of all tests which had been retained in defendants’ files on microfilm and from such a list he ascertained the tests to be reviewed in complying with plaintiff’s Motion. The Trial Court, however, found that it was incredible that the tests were not in a computer and it found particularly objectionable that Heise used the term “computer-like” when the tests had not been put on a computer. It expressed disbelief that the defendants “would have gone to the trouble of microfilming these records but they wouldn’t have gone to the trouble of putting them on computer.” We are unable to follow this reasoning of the Trial Court. Beyond these animadversions on the phraseology used by Ceresney and Heise in their testimony, the Court made only one other finding in connection with the testimony at the contempt hearing. It found that the defendants had failed to use due diligence to discover tests demanded by the Amended Motion. It based this finding on the fact that Dr. Seiffert, the head of engineering safety and testing for the defendants, had delegated to Heise the responsibility of reviewing, locating and furnishing to Ceresney the test records of the defendants available at their factory and headquarters in Germany, as demanded by the plaintiff. Dr. Seiffert gave a perfectly plausible explanation for his choice of Heise, a trained engineer, to search defendants’ records in order to identify and produce the tests which corresponded to the request of the plaintiff. He said: “Searches and retrievals are conducted by the test engineers themselves and not by others. The engineers are familiar with technical subjects, testing techniques and engineering considerations which are involved in their inquiries and do not leave such search responsibilities to clerical personnel or to those who are less informed than themselves.” The Trial Court, however, found this was an incredible procedure, and that the defendants should have left the review of the test records to their “archivist,” who it stated was “the person who knows how to find and put his finger on what is to be produced.” And it concluded that, in resorting to such procedure, the defendants failed “to exercise even the minimum of diligence to come up with the production of the records asked for.” The defendants contended, however, that they had no “archivist” in the sense used by the Court. There was, it was conceded, an individual who acted as the custodian of records but this individual lacked any engineering training and was not equipped to determine from their descriptions what tests in the files corresponded with those requested in the Notice. We fail to see in the procedure followed by the defendants any basis for finding that, in using an engineer to make an examination of the test records, the defendants had not used diligence in providing answers to the Amended Motion. It would seem reasonable that an experienced engineer, who was engaged in conducting safety tests, would be better able to identify the tests called for by the Amended Motion, as agreed to, than would a file clerk or even an archivist, without engineering experience. In any event, the use of an engineer to review the files, rather than an “archivist” or file clerk will not support an inference of intended deception on the defendants’ part or a finding of a want of due diligence. It might be noted, too, that there is in the record other information which seems inconsistent with any finding that the defendants had sought to conceal safety tests conducted by them, or a list of products liability cases in which they had been involved. The plaintiff included in the record two reports prepared by the