3 Fair empl.prac.cas. 71, 3 Empl. Prac. Dec. P 8084 Coda M. Fears v. Burris Manufacturing Company, Marvin Wooten, Manager of the Aberdeen Office of Mississippi Employment Security Commission, No. 28983 Summary Calendar. Rule 18, 5th Cir. See Isbell Enterprises, Inc v. Citizens Casualty Co. Of New York, 5 Cir. 1970, 431 F.2d 4093 Fair empl.prac.cas. 71, 3 Empl. Prac. Dec. P 8084 Coda M. Fears v. Burris Manufacturing Company, Marvin Wooten, Manager of the Aberdeen Office of Mississippi Employment Security Commission, No. 28983 Summary Calendar. Rule 18, 5th Cir. See Isbell Enterprises, Inc v. Citizens Casualty Co. Of New York, 5 Cir. 1970, 431 F.2d 409
Frank R. Parker, Lawyers’ Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellees.
Thomas C. Bradley, Jr., Spartanburg, S.C., Fred Bush, Mitchell, McNutt & Bush, Tupelo, Miss., for other interested parties.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
WISDOM, Circuit Judge:
This is an appeal from an order of the Honorable Orma R. Smith, District Judge for the Northern District of Mississippi, denying the motion of Marvin Wooten to quash a subpoena duces tecum with which he had been served. Fears v. Burris Mfg. Co., 1969, 48 F.R.D. 91. The appeal turns on the extent to which the principles expressed in Carr v. Monroe Mfg. Co., 5 Cir. 1970, 431 F.2d 384,1 should be regarded as applicable to the facts here presented. We regard Carr as controlling in this case and therefore аffirm the district court‘s order.
The plaintiffs, a group of Negro women, filed this class action against the Burris Manufacturing Company of Aberdeen, Mississippi, seeking injunctive relief from alleged discriminatory employment practices on the part of Burris prohibited by Title VII of the Civil Rights Act of 1964,
Through discovery procedures the plaintiffs learned that since 1966 Burris has employed all its plant workers through the Aberdeen office of the MESC. According to Burris, when a vacancy occurs, Burris places a job order with MESC to fill that vacancy, аnd all applicants for the job are screened by MESC before they are referred to Burris. If a prospective employee comes to the Burris plant looking for a job, Burris‘s procedure is to send that person to MESC before considering him for employment. The prospective employee must fill out an employment application at the MESC office and pass the MESC screening procedures before being referred to Burris. Once applicants are referred from the MESC office, they must fill out a Burris application and be interviewed before they are hired. It is Burris‘s рosition that they know very little about the procedures used by MESC to screen applicants for employment at the Burris plant. Burris officials assume that MESC administers some kind of aptitude test, but the results of such tests are not reported to Burris. Further, Burris officials do not see the application forms filled оut at the MESC office, and they maintain no records of their own concerning employment applications or job orders placed with MESC.
At that stage of the proceedings, it became clear to the plaintiffs that the MESC records would be essential to the successful prosecution of their case against Burris. Therefore they filed a notice under
II.
There is a marked similarity between this case and Carr v. Monroe Mfg. Co., 5 Cir. 1970, 431 F.2d 384. In Carr, a group of Negro plaintiffs brought a class action against Monroe Manufacturing Company and John E. Aldridge and Marvin Wooten, officers of MESC. Their complaint charged Monroe with racial discrimination in employment and Aldridge and Wooten with racial discrimination in handling job applications and job referrals, all in violation of Title VII of the Civil Rights Act of 1964,
Wooten attempts to distinguish Carr. He contends that Carr concerned only the narrow issue whether he would be permitted to block out the names and addresses of nonparty applicants and employers on the application cards that the district court had ordered him to produce. This case, he argues, concerns the question whether the district court can validly require him to produce those records at all. Moreover, Carr concerned a discovery order directed to one who was a defendant in the case; this case, on the other hand, concerns an order directed to an MESC officer who is not a party to the suit. We recognize that there are indeed some differences between the two cases, but we cannot agree that because of these differences the principles announced in Carr are irrelevant to this case. On the contrary, in reaching our decision in Carr this Court had to consider many of the arguments that Wooten presents in the brief he has filed in this case. With that preface then, we turn to the substance of Wooten‘s arguments on appeal.
III.
First,2 Wooten argues that 11(g)(1) of the Mississippi Emplоyment Security Law3 creates an absolute privilege that prohibits him as an MESC employee from disclosing, even in a judicial proceeding, the information contained in the MESC records. Although there are no decisions of the Mississippi state courts authoritatively construing the statute, the plaintiffs сite numerous decisions of other jurisdictions holding that such a statute does not grant an absolute privilege against disclosure in a judicial proceeding but merely forbids the voluntary disclosure of the contents of those records to the general public. See, e.g., Marceau v. Orange Realty, Inc., 1952, 97 N.H. 497, 92 A.2d 656; Powers ex rel. Department of Employment Security v. Superior Court, 1951, 79 R.I. 63, 82 A.2d 885; State ex rel. Haugland v. Smythe, 1946, 25 Wash.2d 161, 169 P.2d 706. These same arguments were presented to this Court in Carr. There Judge Godbold, for the Court, declined to speculate how the Mississippi courts would
the Mississippi statute, however construed, does not grant an absolute privilege from disclosure of MESC records in this case. We have recently reviewed the relevant authorities in Garner v. Wolfinbarger (5 Cir. 1970, 430 F.2d 1093). We there concluded that in any given instаnce the special federal interest in seeking the truth in a federal question case may require disclosure despite the existence of a state rule holding the same communications privileged. We reaffirm that result here.
431 F.2d at 388. Similarly, we reaffirm our decision in Carr and hold that 11(g)(1) does not creаte an absolute privilege that in all cases forbids the disclosure in a federal proceeding of the contents of the MESC employment records.
IV.
Second, Wooten argues that the order of the district court requiring him to disclose the contents of the MESC records violates his Fifth Amendment privilegе against self-incrimination, inasmuch as 11(g)(1) provides penalties for the unlawful disclosure of that information. Furthermore, he contends, the order of the district court does not afford him the absolute protection from prosecution necessary before he may be compelled to give evidence that may incriminate him. The plaintiffs, on the other hand, argue, consistent with their interpretation of the statute, that disclosure of the MESC records in a federal proceeding would not be unlawful and therefore that Wooten could not be penalized for producing the records. In his brief filеd in the Carr case, Wooten made much the same contention. Apparently the Court did not consider the point of sufficient merit to discuss it in the text of the opinion. We may assume, however, that since the Court affirmed the order of the district court, it considered Wooten‘s constitutional claim аnd rejected it.
We must do likewise. The
In any event, it appears to us, as it did to Judge Smith, that the order of the district court requiring Wooten to produce the records and give evidence “affords him complete protection” from any criminal penalties. We have no reason to think that the Mississippi courts would allow state laws to be used to frustrate federally protected rights implemented by a federal court order. Of course, in limited circumstances the federal courts may enjoin state criminal proceedings in aid of their jurisdiction or to protect or effectuate their judgments. See
As a final note, we wish to emphasize what we said in Carr concеrning the availability of a state governmental privilege in a federal proceeding. In each case in which a state official asserts a privilege not existent in the common law but enacted by the legislature based on unique considerations of government policy, the federal trial judge has the duty to make an independent examination of the appropriateness of the privilege by balancing the policies behind the privilege against the policies favoring disclosure. After the trial judge has weighed these policies and struck a balance, this Court will not reversе in the absence of a clear showing of abuse of discretion. See 431 F.2d at 388-389. We hold that Judge Smith-- who did not have the benefit of guidance from our decision in Carr-- committed no abuse of discretion in ordering the production of the MESC records. Indeed, we agree entirely with his choice and with the reasons so well expressed in his memorandum opinion. See Fears v. Burris Mfg. Co., N.D.Miss.1969, 48 F.R.D. 91.
Affirmed.