PRETRIAL ORDER NO. 15
Upon consideration of the responses submitted by the parties to the Opinion of March 21, 1979, and of the substantive and procedural guidelines of the Special Masters and the parties’ failure to object thereto, and it appearing that some modification of the pretrial proceedings and discovery as prescribed by Pretrial Order No. 12 is warranted, it is this 18th day of April, 1979,
ORDERED That the substantive and procedural guidelines of the Special Masters be and they are hereby approved and accepted by the Court.
GUIDELINE NO. 1
All privileges will be strictly construed.
GUIDELINE NO. 2
A party claiming a privilege with respect to a particular document has the following burdens:
(a) The claimant must state the particular rule of privilege upon which the claim is based.1 This may be done by the use of an identification code if the Special Masters establish such a code.
(b) There must be appended to the claim any information, in addition to that in*605 the document itself, necessary to establish the factual elements required by the privilege rule invoked.2 The information must be sufficiently detailed to permit decision on the claim and must be verified by affidavit by a person or persons having knowledge of the facts asserted.3
(c) In connection with a government privilege, in addition to the substantiating material required by paragraphs (a) and (b), a statement shall be provided from the head of the department on behalf of which the privilege is claimed, stating that he has examined the documents or has been given a detailed review of them, and personally approves the assertion of the privilege.
Comment on Guideline No. 2
With regard to paragraph (c) above, defendants have argued that every claim of government privilege must be made personally by the head of the department involved, upon a personal inspection of the documents. On the other hand, the Government has argued that it is sufficient that the claim of privilege be made by the Government’s representatives in litigation, i. e., its legal counsel. It seems to'us that neither position is quite correct and that both fail to take note of the distinction between a simple claim of privilege and a “formal claim” of privilege which entails a difference in the procedures by which the claim is determined.
All the cases sustaining government privilege appear to require an assertion of the claim by some responsible officer other than the Government’s attorneys. The requirement that a responsible officer assert the claim is surely not to substantiate the legal basis of the claim, for that is a question of law. Rather, the purpose is to assure that the privilege, which in any event is waivable, is not lightly claimed. Hence, the requirement is that the claim be made by someone in a position of sufficient authority and responsibility to weigh prudently the competing considerations of making evidence available in litigation and protecting important government interests. The decision involves policy, not simple law, and therefore is more than a Government lawyer’s decision. At the same time, the decision is a matter of importance and not merely routine categorization of documents, and therefore should be made by a policy-maker who can be assumed to have the larger public interest in mind.
The foregoing procedure contemplates in camera review by the court, or in this case the Special Masters, to determine the legal validity of the claim. In contrast with this procedure, which may be described as a simple claim of governmental privilege, is a “formal claim” of governmental privilege. When a “formal claim” of privilege is involved, the document is not produced for inspection by the court. Rather, the executive branch withholds the document by its own authority. If given effect, such a claim is far reaching because it forecloses any judicial examination of its basis in the document. Accordingly, when the claim is not merely that the court should withhold the document from the opposing party under privilege, but that the document should be withheld from the court itself, far weightier substantiation is required. This problem is addressed in Guideline No. 3.
The foregoing analysis is suggested by the court’s decision in Black v. Sheraton Corp. of America,
We agree that where the executive seeks to withhold from the court documents relevant to a civil or criminal lawsuit, the claim of privilege must meet strict requirements. In that situation the court is relying on the affidavit of the responsible department head for the information pertinent to its decision concerning the privilege. .
In this case, however, the executive does not seek to shield the documents in question from judicial scrutiny, but has stated its willingness to tender them to the court in camera.
Since the district court would be able to examine the actual documents, it did not need an affidavit of the same degree of specificity as in a case where it was relying on the affidavit to decide whether valid grounds existed for assertion of the privilege. Nor did the district court need the personal assurance of the department head as to the proper classification of each document. (Emphasis supplied.)
(a) There will be an in camera inspection by the Special Masters of all material as to which a claim of privilege is made, except when certain national security interests are raised.
(b) If a privilege claim involving a national security interest is raised by the Government and the materials are believed by the Government to be too sensitive for in camera inspection by the Special Masters, the issue will be resolved on the basis of affidavits submitted by the agency head, particularly describing the nature of the information sought and the reasons why disclosure would jeopardize national security interests. If the submission by the agency head is found by the Special Masters to be inadequate to serve as a basis for the resolution of the privilege claim, an in camera inspection by Judge Greene will be recommended if an appropriate showing of need for the information has been made by the demanding party. Whether the documents will then be produced for in camera inspection by Judge Greene is a matter to be resolved before him.2
When a privilege is a qualified one, once the asserting party satisfies his burden of demonstrating that the material falls within the privilege (see Guideline No. 2), the burden is then on the party opposing the privilege to establish reasons why the materials should be disclosed.1
(a) For the work product privilege, this burden entails satisfying the standards of Guideline No. 17;
*610 (b) For qualified government privileges other than the presidential privilege (see Guideline No. 25), this burden entails showing that the relevant interests justifying disclosure outweigh the relevant interests justifying nondisclosure.
GUIDELINE NO. 5
(a) When a document contains both privileged and unprivileged material, the unprivileged material must be disclosed to the fullest extent possible without thereby disclosing the privileged material.1
The attorney-client privilege protects a communication from the client to the attorney that is:
(a) made primarily for the purpose of obtaining legal advice or assistance;1
(b) reasonably believed by the client to be necessary for that purpose;2 and
(c) intended to be confidential.3
Comment on Guideline No. 6
The rule of attorney-client privilege as stated above includes the subjective element that the
For the purpose of the attorney-client privilege, an “attorney” is:
(a) A person who was a duly licensed attorney at the time of the communication1 and who:
(i) had the title of attorney in the organization in which the person was employed;2 or
(ii) in the specific circumstances was acting in the capacity of giving legal advice,3 as evidenced by the fact that the person regularly acted in such a capacity or by other circumstantial evidence of role.4
For the purpose of the attorney-client privilege, the “client” is:
(a) In the case of the defendants, the named defendants (American Telephone & Telegraph Co., Western Electric Co., and Bell Telephone Laboratories, Inc.), the wholly owned subsidiaries and majority-owned subsidiaries named in pages 32-44 and pages 45-46 of Plaintiff’s First Statement of Contentions and Proof, considered collectively,1 but not the minority-owned companies named in pages 44-45 and formerly affiliated companies named in pages 46-48. The privilege also applies when an attorney provides legal advice or assistance jointly to AT&T considered collectively and to another corporation if the advice or assistance is on a basis that is confidential among the clients and relates to a matter in which the clients have a substantial identity of legal interest.2
(b) In the case of a government department or agency, the department or agency that employed the attorney. The privilege also applies when an attorney provides legal advice or assistance to another agency if the advice or assistance is on a basis that is confidential among the clients and relates to a matter in which the agencies have a substantial identity of legal interest.3
Comment on Guideline No. 8
The cases clearly hold that a corporate “client” includes not only the corporation by whom the attorney is employed or retained, but also parent, subsidiary, and affiliate corporations. We found no cases in which there was a consideration of the degree of ownership required to give rise to the parent, subsidiary, or affiliate relationship. The cases in which the issue has arisen as to the identity of the client also involved facts in which the two related corporations had a substantial identity of legal interest in the matter in controversy. In such circumstances, notwithstanding that the corporations were distinct, the representation by the attorney was common or joint representation and hence the communications among them were still covered by the attorney-client privilege. If the claimant of the privilege can show a substantial identity of legal interest in the specific matter, it therefore makes no difference whether the two corporations were so affiliated as to be a single “client.” But if there is no such community of interest in seeking advice, for example when the matter is transmitted simply for information, the question of closeness of affiliation may arise.
In the facts of this case, both parties contend that the wholly-owned and majority-owned affiliates of AT&T have close and long-standing relationships with each other, although they differ as to the legal significance of that intimacy. For purposes of the attorney-client privilege rule, however, the positions of both parties imply that these affiliates be considered part of AT&T as a single client.
As for the companies in which AT&T owns a minority interest, apparently AT&T’s interest in no case exceeds 30 percent, a position that has been virtually unchanged for at least 20 years.
Despite the fact that the minority-owned companies affiliated with AT&T and involved in this action will most likely have had a “substantial identity of legal interest” with the AT&T system in the matters that will be brought into question (and hence the communications will be privileged under the “joint” representation rule stated in the second section of paragraph (a)), the defendants still insist that AT&T as “client” should include collectively all member corporations of the Bell system. Defendants contend that to distinguish between member corporations on the basis of percentage of ownership exalts form over substance. We do not agree.
The cases referring to parent, subsidiary, and affiliate corporations in regard to the attorney-client privilege simply reach the conclusion that there was a single client without examining this question. Perhaps the conclusion to be reached may well depend on where one begins. If analysis begins with the proposition that corporations under unified control are “one” even though comprised of components held in varying degrees of ownership, then a minority-owned company can be assimilated to one in which substantial, although not majority, ownership is held. On the other hand, if analysis begins with the proposition that formerly distinct corporations are separate persons except as specific legal purpose warrants treating them as one, then a different conclusion is reached.
A minority-owned company by hypothesis has independent stockholders, and those stockholders, by our analysis, will have some added protection in the fact that an attorney serving their corporation is bound to regard that company as being distinct from an individual corporate stockholder that, for practical purposes, may control the company but not own a majority of the stock. Hence, we conclude that the legal form should be given effect in such a context. To pose an illustration, suppose payments were being made by the minority-owned company which that company contended were an inappropriate diversion of revenues that would otherwise go into profits and hence be available for distribution to the stockholders of the minority-owned company. In such a situation, it would be novel to say that lawyers for AT&T were representing a single client. And if that were said, it is difficult to see why a “single client” situation would not exist whenever one corporation owned more than a nominal fraction of the stock of another.
We also found no cases dealing with the identity of the client in respect to the Government. Indeed, the ruling in this case by Judge Greene that the independent regulatory agencies are not part of the Government for purposes of discovery appears to be one of few decisions recognizing the formal divisibility of the Government for purposes of trial court litigation. The rationale of that ruling would seem to imply that the Government is a cluster of “clients” for purposes of the attorney-client privilege. In some situations, it would be evident that the Government is not a single client. For example, if the Justice Department and the enforcement bureau of FCC took opposite positions before the FCC, it would be absurd to say that their exchange of briefs involved an attorney-client communication. A less extreme case, but one in which the agencies would still not have a sufficient identity of interest to justify the exchange of information by the attorneys and still maintain the attorney-client privilege, would arise when the FCC is engaged in regulatory matters that are not within the jurisdiction of the Justice Department. The Justice Department’s interest in the outcome with regard to a particular related industry, because of its future implications in actions which may be instituted, would not constitute a community of legal interest with the FCC in that particular proceeding. The problem, therefore, is to determine the criteria by which the identity of a Government attorney’s “client” is defined. The client clearly includes the attorney’s own agency. On the other hand, it would not include some other agency under all circumstances, because any two agencies can have compatible or conflicting positions depending on the matter involved. The situation can be analogized to that of separate corporations having connections to each other. On that analogy, if the two agencies have a substantial identity of legal interest .in a particular matter, the attorneys for each agency can be treated as representing both agencies jointly; if the agencies are in conflict, communications between counsel for the agencies are not within the attorney-client privilege.
With respect to communications from an organizational client to an attorney, a person making a communication personifies the client if the subject matter of the communication from that person is within the scope of his employment. The subject matter is within that scope if:
(a) it is directly related to the person’s own activities in the course of employment, or the activities of a person who is his subordinate,1 or
*619 (b) the person making the communication is part of the client’s “control group,” defined as those persons who will make, or substantially participate in making, decisions by the client on the basis of the legal advice that is sought.2
GUIDELINE NO. 10
With respect to communications from an attorney to an employee of an organizational client, the matter in the communication is privileged only:
(a) to the extent that it reveals material shown to have been confidentially communicated to the attorney by a person who personifies the client, as defined in Guideline No. 91 (communications from attorneys that contain or are based upon public information or matter obtained from non-client sources are not privileged even if legal advice is being given to the client);2 and
(b) if the information is disseminated only to persons who are within the “control group” as defined in Guideline No. 9(b), or who need to know the material involved in order properly to perform their activities in the course of employment.3
GUIDELINE NO. 11
A communication between employees of an organizational client that is prepared for the purpose of obtaining legal advice and is eventually transmitted to an attorney for that purpose is within the attorney-client privilege only if the employees personify the client under Guidelines No. 9 and 10(b).1
Comment on Guidelines No. 9, 10, and 11
It is well established, and both parties concur, that the attorney-client privilege applies to corporations. Since the corporate entity can act only through agents and employees, it is necessary to determine which employees “personify” the corporation for purposes of the attorney-client privilege. The earlier cases dealing with the attorney-client privilege as applied to corporations, particularly City of Philadelphia v. Westinghouse Electric Corp., constructed the “control group” test to distinguish between those employees who personify the corporation and those who do not.
The “control group” concept is clearly right as far as it goes. Communications by top management have to be within the privilege, if it is given recognition at all, for otherwise the privilege would be empty; a corporation thinks and decides through its top management. Yet a corporation also learns of things affecting its affairs through the eyes and ears of lower echelon employees, and takes action on the basis of legal advice through employees who are not members of top management. The question, then, is whether the attorney-client privilege applies to communications from lower level employees to an attorney for the corporation, i. e., communications to an attorney by an employee who is not a member of the control group. There are also two related questions: What about communications of advice from the attorney to lower echelon personnel that reveal information which was privileged when given to the attorney? And what about communications between employees, particularly at lower echelons, containing information that finds its way to the attorneys? If the “control group” test is used as the exclusive definition of those who personify the corporation, none of these communications involving lower echelon personnel would be covered.
Some cases have held that the “control group” includes employees whose duties entail necessary communications to the corporation’s attorney. But, as Judge Richey pointed out in Ampiciliin Antitrust Litigation, that is a distorted use of the term “control group.” We conclude, in accordance with Judge Richey and other decisions, that the “control group” test is too narrow and that the proper test is whether the giving of the information to the attorney was reasonably necessary in the employee’s course of duties. Correlatively, communications from an attorney to an employee containing originally privileged information are also privileged, with respect to that information, if the recipient employee requires the information in his duties. And also correlatively, passage of the information to the attorney, and back, through the hands of non-attorney employees does not remove the privilege if transmission of the information was part of the employment responsibilities of those employees.
If this definition is proper, it may well be asked why it was not long ago established in the decisions, and indeed why the “control group” test was formulated instead. The explanation lies in the historical sequence of the cases and in an unstated but clearly established limitation on the privilege.
Historically, the beginning point is an observation in Hickman v. Taylor. It was there said that the attorney-client privilege did not apply to a statement to an attorney from an employee who witnessed an accident involving his employer’s tug. The employee, said the Court, was a “mere witness.” The Court noted, but attached no significance to the fact, that the employer in Hickman v. Taylor was a partnership. A partnership consists of real people and hence does not beget
Many cases subsequent to Hickman v. Taylor involved similar facts — a lower echelon employee giving a statement about an accident to an attorney — except that the employer was a corporation. The corporate employers in these cases attempted to invoke the attorney-client privilege, on the argument that a corporation can act only through its agents, that the employee involved was acting in the scope of his employment in the accident, that the communication related to a matter within the scope of his employment, that the communication was therefore on behalf of the employer, and that the communication accordingly was privileged.
Although a few decisions accepted this argument, the prevailing view did not. Denial of the privilege was grounded in some decisions on the proposition that the communication was not within the scope of the employee’s employment, occasionally by reliance on cases holding that such a statement would not be an admission by the employer — a quite different evidentiary problem. Although this result may be right, it is difficult to accept the assertion that it followed because giving the statement was not within the employee’s scope of employment. If it is ever within the scope of any corporate employee’s employment to communicate with a company attorney, surely it is so when the communication concerns the facts of a transaction in which the employee personally participated and which involves the distinct possibility that the employee’s conduct will be the basis of corporate liability. Denial of the privilege was alternatively grounded on the proposition that the employee was a “mere witness,” citing Hickman v. Taylor. This ignores the fact that the employee in Hickman could not have been treated as personifying a corporate employer, because there was no such employer to personify. And it does not explain why a low echelon corporate employee, say a bus driver, is a “mere witness,” while a member of top management is not simply a “mere witness” to corporate transactions involving his conduct.
Yet other cases continue to apply the “mere witness” rule to corporate employees with respect to statements about accidents. We have the peculiarity, therefore, that in a situation like Hickman v. Taylor but involving a corporation, the employee’s statement is not privileged, whereas in communications having to do with corporate business transactions, as in Harper & Row, Diversified Industries, and Ampiciliin, the privilege applies. The resolution of this apparent conflict is unlikely to be found in dissection of the concept of “scope of employment.” Rather, the point would seem to be this: In cases of accidents, preserving secrecy of the statement ordinarily adds so little to the corporation’s peace of mind in getting legal advice and adds so much to the fact-gathering burden of the injured party that the statement simply should not be regarded as privileged; in other transactions, particularly where the legal consequences to the employer corporation can be large and long-lasting, the competing considerations are in closer balance, and the privilege should apply.
On this analysis applied to the present case, the protection of the privilege should not turn on the position of the employee, but rather on whether the matter communicated is within the employee’s regular corporate responsibilities, however lowly, and is reasonably necessary in determining what has happened in the corporation, so that the attorney can make informed decisions and intelligently advise the corporate employees who will act upon it. Correlatively, if an informed corporate decision is to be made on the basis of legal advice, the decision may require action on the part of persons other than top management personnel and the factual communications to the attorney must be circulated to individuals who will make those decisions. The essential question in the continuing protection of these communications is whether the employee whose actions are to be guided by the legal advice as a practical matter must know the facts originally communicated in order to understand and act upon the advice in the course of his employment. Some cases have expressed this concept as the “need to know.” Others have done so by enlarging the scope of “control group” to include all employees whose duties entail knowing the information in the communication.
We therefore reject the “control group” concept as the singular definition of those who personify the corporation. Rather, the test is whether the communication is a necessary incident of the employee’s employment, of which an employee’s being a member of the control group is an illustration.
What is the “control group” for any given matter depends on the corporate structure and the legal matter in question. At some point as one moves down into middle management, the persons involved do not generally share in originating requests for legal advice or share in decisions about legal matters of the type involved in the particular document. At that point, the “control group” concept is inapplicable. Rather, the relevant factor is the employee’s particular duties in regard to the information. The privilege applies to the communication only if the employee is the source of the information going to the attorney or is a regular conduit for such information, or, in response, if the information is revealed in the attorney’s advice and the employee to whom the information is disclosed has a “need to know” the information to carry out his own duties.
In this connection it seems useful to say something about the problem of “laundering” corporate information by circulating it through the corporate attorney. It seems to us that the metaphor is inapt and the fear exaggerated, if the limitations on the privilege are kept in mind. The metaphor is inapt because corporate information
The Government states that it has not claimed the attorney-client privilege, and the parties do not devote extensive argument to the problem of personification of the Government for purposes of its attorney-client privilege. However, it seems likely that the Government’s attorney-client privilege will be involved when discovery concerns documents of agencies other than the Justice Department. There appear to be no cases dealing with the question of personification of the Government for purposes of the attorney-client privilege. However, the analogy to the corporate problem seems apt. Clearly the head of a department or bureau should personify the Government in communicating with counsel for the department or agency, and in asking legal advice of. the Justice Department. So also, a Government truck driver’s statement about an automobile.accident should not be absolutely privileged. The analysis to be used in mediating between these limiting situations in a Government bureaucratic structure should be the same as used in regard to a corporate bureaucratic structure.
The fact that a communication from a client to an attorney did not specifically include a request for legal advice or assistance does not preclude its being privileged, if the information reasonably could be foreseen to be relevant to future advice or assistance.
GUIDELINE NO. 13
The attorney-client privilege is applicable only if the matter communicated is not for the purpose of furthering a criminal or fraudulent transaction.1 To establish this exception to the attorney-client privilege, the party seeking discovery must make a prima facie showing that the lawyer’s advice was sought for the purpose of furthering the client’s wrongful conduct.2
Comment on Guideline No. 13
In this action the Government contends, among other things, that the defendants furthered their wrongful activity by improperly prosecuting and defending legal proceedings for the purpose of harassing competitors and preserving and extending their monopoly. There is authority that pursuit of litigation for such purpose is “sham” litigation and is evidence of wrongful purpose under the antitrust laws and may itself constitute a violation of those laws. California Motor Transport v. Trucking Unlimited,
The law of attorney-client privilege has long recognized an exception to the effect that the privilege does not apply to advice or assistance sought for the purpose of aiding the client in an illegal or wrongful purpose. The terms of the exception are variously stated. The prohibited purpose that triggers the unveiling has been described as a “crime,” “crime or fraud,” and “crime, fraud, or tort.” Whichever definition is used, a violation of the Sherman Act would seem to be included, because such conduct is a crime, a tort, and a wrong interdicted by a public policy at least as strong as that proscribing fraud. Hence, if it can be shown that the defendants’ conduct in prosecuting or defending various proceedings was for the purpose of protecting or enlarging an
The key problem, however, concerns the showing that must be made in order to lift the veil. Clearly it would be improper to allow discovery as against the attorney-client privilege, merely on the allegation that the communications were in furtherance of sham litigation. That would open the door too far. Yet it would also be improper never to allow discovery, for a plaintiff thereby would be precluded from obtaining proof that could convert a well substantiated suspicion of wrongful use of legal process into an overwhelming demonstration of the fact. The problem has arisen elsewhere, for example, in connection with the privilege against self-incrimination, where the claimant must show justification for the claim but need not go so far as to establish his own guilt. The solution, as indicated in Burlington Industries v. Exxon Corp., is to sustain the privilege until the party seeking to lift it has established, by evidence aliunde, a prima facie showing that the use of legal procedure was wrongful. Hence, the privilege, if established as to various matters, is not lost until such a showing is made. The question that then arises is to whom such a showing ought to be made.
We believe, and hold, that any such showing should be made before Judge Greene at trial, or at such other hearing as he may direct. By hypothesis, such a showing would not involve a question of privilege, which is within our designated authority, but rather a question of wrongdoing that would vitiate a privilege. Moreover, proof of wrongdoing for this evidentiary purpose would largely if not wholly duplicate proof of wrongdoing on the substantive issues in the case. We think both the limitations on our authority and considerations of economy in adjudication require that we not consider proof intended to vitiate defendants’ privilege on the ground of wrongdoing.
Materials prepared in anticipation of litigation by the attorney, the client or the agent of either are subject to a qualified privilege.
In the terms “material prepared in anticipation of litigation or for trial”:
(a) “Litigation” includes a proceeding in a court or administrative tribunal in which the parties have the right to cross-examine witnesses or to subject an opposing party’s presentation of proof to equivalent disputation.1
(b) “In anticipation” means any time after initiation of the proceeding or such earlier time as the party who normally would initiate the proceeding had tentatively formulated a claim, demand, or charge. When the material was prepared by a party who normally would initiate such a proceeding, that person must establish the date when the claim, demand, or charge was tentatively formulated. When the material was prepared by a potential defendant or respondent, that person must establish the date when he received a demand or warning of charges or information from an outside source that a claim, demand, or charge was in prospect.2
Comment on Guideline No. 15
The “work product” qualified privilege originated in Hickman v. Taylor, where it was used to protect against discovery of the statement taken by an attorney from an occurrence witness to the very tort transaction in which the attorney was involved as an advocate. Through developing case law and the 1970 revision of F.R.C.P. 26, the privilege was extended to work prepared in anticipation of litigation, as well as with respect to pending litigation, and to the work of non-lawyers as well as lawyers. Subsequent decisions hold and the parties both assert that the privilege applies to past litigation as well. Both parties also assert, correctly in our view, that the privilege applies not only to litigation in courts, but to litigation before administrative tribunals, although they disagree somewhat as to the classes of administrative proceedings that should be included in this category.
The application of the work product privilege apparently will have broad effect in this litigation if it is applied to those categories of proceedings that the parties agree are “litigation.” The privilege applies to all matter prepared by anyone, whether or not an attorney, in anticipation of litigation; under the decisions it applies not only to litigation that seems certain to eventuate, but also to that which appears as a distinct possibility; it applies to material prepared in connection with past cases as well as pending and future litigation; and it applies not only to court proceedings but to a broad array of administrative proceedings as well.
The Federal Rules do not define what is meant by “litigation.” There appears to be no authority applying the term to administrative proceedings except Professor Dam’s holding in MCI v. AT&T that it includes administrative adjudication but excludes administrative rule-making. The parties recognize that as applied to administrative proceedings, the term “litigation” has a very broad sweep. The Government asserts that the term includes proceedings in which testimony is taken and cross-examination is allowed. This includes all trial-type proceedings under the Administrative Procedure Act and cognate state statutes in which a trial-type hearing is allowed, all proceedings involving rule-making on a record, and, according to many decisions of the Court of Appeals for the District of Columbia, some “informal” rule-making proceedings to the extent these decisions hold there is a right in such proceedings to present testimony and to cross-examine opposing witnesses. The defendants assert that “litigation” includes any proceeding in which “adjudicative facts” are to be determined, which would include all trial-type hearings and some rule-making procedures; the only administrative proceedings not included in defendants’ definition is notice-and-comment rule-making.
The parties’ proposals concerning the definition of “litigation” as applied to administrative proceedings are very much the same. In administrative law, proceedings in which testimony is taken and cross-examination is allowed (the Government’s proposed definition) largely coincide with those in which “adjudicative facts” are to be found (AT&T’s proposed definition). Indeed, it is because specific “adjudicative” facts are to be found in a proceeding that the rights to present testimony and to cross-examine are afforded. We have adopted a modified version of the Government’s proposed definition, in which the
Defining “litigation” to include all proceedings in which there is a right of cross-examination contemplates inclusion of all trial-type hearings, proceedings in which a trial-type hearing may be had of right even if no such hearing is actually held, rule-making on the record, and any other proceedings in which by law or established practice the right of cross-examination exists. When there is doubt about the matter, the party claiming privilege for a document must show that the right existed in the proceeding for which the document was prepared.
The parties apparently recognize that both will enjoy the benefit of the work product privilege, although perhaps understandably each contemplates that the privilege has broad application to its own files but narrow application to those of the opposing party. Thus the Government seeks to narrow AT&T’s work product privilege by arguing that the privilege does not apply to proceedings in which AT&T participates “in the regular course of its business,” while AT&T suggests that the privilege does not apply to “regulatory or investigative activities” unless litigation was specifically in contemplation.
Denial of the privilege to AT&T with regard to proceedings that are the “regular course of its business” would have far-reaching effect. Most of AT&T’s business undertakings are the subject of some sort of regulatory proceeding, certainly most of the undertakings relevant to the present action. The Government’s definition of AT&T’s work product privilege presumably would permit AT&T to claim the privilege only in proceedings that were not regular, i. e., unusual, such as prior antitrust litigation. AT&T’s definition of the Government’s work product privilege is also restrictive. The Government would have to show that litigation was contemplated when it began an investigation, whereas a Government investigation often if not always includes the question whether litigation would be warranted.
We have rejected both restrictions. There is no authority for the Government’s suggestion that the privilege is inapplicable to litigation in which a party participates “in the regular course of its business.” For many organizations, litigation is an integral part of their business, for example liability insurance companies, transportation companies, and lending companies. It may be noted that Rule 26(b)(3) expressly confers the work product privilege on “surety, indemnitor, insurer,” a category that includes what might be termed litigants by vocation. Similarly there is no authority for AT&T’s suggestion that the Government is required to have some specially distinct anticipation of litigation in order to claim work product privilege for materials it has prepared in an investigation. Of course, a routine Government administrative inquiry, such as that in Peterson v. United States,
The fact that each party seeks severe restrictions of the scope of the work product privilege as applied to the other party is, however, significant. It suggests both parties recognize that the work product privilege, as defined under the authorities, may radically restrict discovery in this case. That is, the privilege as so defined applies to all legally significant material prepared by anyone in the staff of either the Government or AT&T, in contemplation of any contested proceeding that is reasonably anticipated, respectively by two huge organizations whose essential activity in substantial part proceeds through the medium of contested proceedings. This problem is brought more sharply into focus if it is remembered that many of the documents assembled by the Justice Department are from the FCC and that many of those assembled by AT&T are counterparts relating to the same FCC proceeding.
We do not now know whether this sweeping withholding will result from applying the work product privilege as we have defined it on the basis of the authorities. The parties have yet to make their claims of privilege. Perhaps relatively few documents will meet the definition, and perhaps the privilege will not be claimed as to all that do meet the definition. But if the parties’ apparent fears are realized, the work product privilege will have substantial exclusionary effect. If so, there is the prospect of proceeding without large amounts of evidence to the decision of a case involving the structure of the largest economic enterprise in the United States because of a discovery limitation originated in the loss of a tugboat.
We contemplate that with respect to particular documents, questions may arise of overriding the work product privilege on the ground of “necessity” as provided in Rule 26(b)(3). If so, we will resolve those questions as they arise. However, it is possible that the bulk of the work product material will not be challenged on that ground or, if challenged, will survive in the particular instances. If so, either, or indeed, both, of the parties may assert that, looking at the material as a whole, there is the “necessity” under Rule 26(b)(3) that all or large parts of it be produced. That problem will be addressed at a later point in the litigation.
The trial preparation material privilege applies to matter prepared for litigation other than the instant litigation.
Materials prepared in anticipation of litigation may be discovered “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Rule 26(b)(3) F.R.Civ.P.
Disclosure will not be required of the mental impressions, conclusions, opinions, or legal theories of the attorney or his agent in the absence of a showing of extreme necessity by the party seeking discovery.
A party does not lose the trial preparation material privilege by disclosing the material in question to a person aligned in interest against a common adversary, for example, co-defendants or two government agencies assisting each other in a criminal or civil action.
Comment on Guideline No. 19
This guideline does not resolve the question of the time and degree of alignment of interest required between parties such that exchange of trial preparation materials between them does not result in waiver of the work product privilege. In particular it leaves open for subsequent briefing, argument, and decision whether waiver results from exchange of materials between private litigants in different litigations, between a private party and the Government, and between Government agencies under various circumstances.
Information obtainable by a member of the public under the Freedom of Information Act is not privileged,
There is a qualified privilege for intraagency and inter-agency memoranda containing advice, opinions, and recommendations given in the course of deliberations concerning government legal and policy decisions by persons with responsibility for participating in such deliberations.
(a) The privilege applies to the advice, opinions, and recommendations, but not to the facts to which they relate.2 The privilege applies to advice, opinions, and recommendations given by outside consultants as well as to that given by government employees;3 the fact that the advice, opinions, and recommendations come from a person of subordinate rank or position does not diminish its eligibility for the privilege.4
(b) The privilege does not apply to the final decision, the reasons stated for that decision, or the deliberative documents that were incorporated in the final decisions by reference.5
There is a qualified privilege against disclosing material in the file of a government law enforcement investigation, civil or criminal, if:
(a) The investigation is pending or, although presently closed, has a substantial possibility of being reactivated,1 and revelation of the material may prejudice the success of the investigation or a proceeding to which the investigation is directed;2 or
(b) The investigation is closed and the disclosure of the information will seriously impair the ability of investigatory bodies to conduct future investigations.3
There is a qualified privilege against disclosing the identity of a person (“informer”) who has provided the Government with information or assistance concerning conduct on the part of others that might be found unlawful, if such information or assistance is generally given with the expectation that it be confidential because of a fear of retaliation if identities are revealed.
(a) The privilege applies even after the informer gives evidence, but is lost if the informer’s identity is revealed or is soon to be revealed.2
(b) The privilege does not apply to the information that the informer provided the Government except to the extent necessary to prevent revelation of the informer’s identity.3
Comment on Guideline No. 23
In the cases where the informer privilege has been recognized, the information provided to the Government has involved violations of the law. The two cases which we found where the privilege was denied because the information disclosed did not relate to illegal activities were both from the Northern District of Illinois. Alliance to End Repression v. Rochford,
In Rochford the court stated: “The informer’s privilege encourages citizen’s cooperation in law enforcement by ensuring the anonymity of informers who have good reason to fear that disclosure of their identity could bring physical harm. . . When, on the other hand, a citizen reports on purely lawful activities, law enforcement goals are not furthered and the informer need not fear bodily harm if his identity is disclosed.” Supra at 445. We believe that the reason given for denying the protection of the privilege, i. e., fear of harmful repercussions, offers greater support for the opposite conclusion.
Since the primary goal of the privilege is to protect the flow of information to the Government, by protecting informers from retaliation, we believe that it is unwise to limit the protection to potential physical harm and correspondingly to the reporting of illegal acts. Particularly in the context of regulated industries, the government is in need of a great deal of information that may not reflect illegalities, but which may dictate the direction of regulatory activities. If confidential sources of such information are to be expected to continue, those individuals, often employees, must be protected from financial retaliation that could result through the loss of their employment.
By limiting the informer privilege to the reporting of illegal activities, we place the burden and ultimate risk of loss on the informant to correctly evaluate what is illegal prior to reporting it. Such an expectation is clearly unreasonable and can only lead to the discouragement of that which the rule was intended to encourage.
There is a qualified privilege for confidential communications between the President and his immediate staff. The privilege may be overborne by a showing of compelling circumstances justifying disclosure. If the privilege is asserted, the parties will be asked for further briefs addressed to the specific matter.
There is a privilege for military and diplomatic secrets that are classified as confidential in the interest of national security. If the privilege is asserted, the parties will be asked for further briefs addressing its nature and scope and its application to the specific matter.
GUIDELINE NO. 26
A government privilege is waived by the Government’s voluntary disclosure of the materials which it protects unless the disclosure was reasonably necessary to accomplish the purpose for which the materials were prepared.
Statutory bases for withholding documents from discovery will be addressed by the parties at such time as the documents are submitted to the Special Masters.
Comment on Guideline No. 27
In this regard we would note that in these guidelines we have rejected the Government’s proposal of a qualified common law privilege regarding information filed with various government agencies by third persons and containing matters of a confidential or proprietary nature. The proposed guideline, which we were initially disposed to accept, was formulated as follows:
There is a qualified privilege for information that was supplied to the Government by third persons (“proprietary information”). “Proprietary information” consists of trade secrets, confidential research, private financial information, and similar information which, if disclosed, might result in embarrassment or injury to the person or organization to which it relates.
Although such a privilege may be recognized by law, the cases so far have all involved FOIA (Freedom of Information Act) action or claims of confidentiality based on specific statutes. We could find no authority for such a privilege under common law, as distinct from statute or FOIA exceptions, although there is much to be said favoring such a privilege. On further consideration, however, we think it unnecessary to come to a conclusion on the subject. This is because, as defendants contend, in the special posture of this case, recognizing such a privilege would be redundant or inconsistent with Pretrial Order No. 7.
That Order provides that all material produced through discovery in this action and denoted as “protected” by the producing party can be disclosed to no one except the opposing attorneys and their staffs in this action and to particularly identified individuals such as expert witnesses, and then only for the purpose of conducting this litigation. The essence of defendants’ argument is this: The “proprietary information” privilege is in any event inoperative if the need for discovery outweighs the interest of preserving confidentiality of the information and thereby keeping open the flow of such information to the government; the interest of preserving such confidentiality can very largely if not completely be served by permitting the discovery only on the condition that the information be kept confidential to the attorneys and those assisting in presentation of this case; and that condition of confidentiality already exists by reason of Pretrial Order No. 7.
This contention is persuasive, given the law of this Circuit strongly favoring discovery. In Association for Women in Science v. Califano,
On this analysis, it would be pointless to give general qualified protection to proprietary information when Pretrial Order No. 7 contains a general provision that would overcome the privilege. Hence, no general common law privilege concerning “proprietary information” will be recognized. This does not exclude the possibility of a Government claim based on such a privilege concerning specific material as to which the protection of Pretrial Order No. 7 might be regarded as inadequate under the principles of AWIS v. Caiifano and Westinghouse v. City of Burlington and specific statutory authority.
GUIDELINE NO. 27.1
There is a privilege on the part of the Government under 15 U.S.C. § 1313(c) to refuse disclosure of documentary material, answers to interrogatories, and transcripts of testimony obtained by the Government under 15 U.S.C. § 1312. The privilege is absolute unless one of the following events occurs, in which ease the privilege lapses with respect to the material involved:
(a) The party from whom the material was obtained consents to its disclosure, as provided in 15 U.S.C. § 1313(c)(3); or
(b) The matérial is delivered by the custodian to a person in contemplation of its direct use in this action. For this purpose, “direct use” means offering the material in evidence at trial, listing it in a pretrial order as material to be introduced in evidence, showing it to a witness in preparing the witness’ testimony at a pretrial deposition or at trial, using it to impeach a witness at pretrial deposition or at trial, formulating interrogatories, demands for admission, or questions to be propounded at a deposition, or similar use.
Comment on Guideline No. 27.1
Under 15 U.S.C. §§ 1311-1314, the Attorney-General and the Antitrust Division are given broad powers of ex parte discovery in investigation of suspected antitrust violations. In substance, the Justice Department, on its own initiative and without having filed suit, can subpoena documents, submit interrogatories, and take depositions to discover information potentially relevant to civil antitrust proceedings. The product of these demands is usually called “CID” material. To protect the persons against whom such discovery demands are made, the statute provides that CID material is to be kept in special custody, 15 U.S.C. § 1313(a) from which it may not be released except to authorized members of the Justice Department, § 1313(c)(2), or by or upon consent of the person from whom the material was obtained, § 1313(c)(3), (4). The statute specifically prohibits disclosure of CID material to persons not members of the Justice Department, § 1313(c)(3). It also provides that a staff attorney of the Department engaged in litigation may obtain from the custodian CID material needed in litigation. In the latter situation, “Upon the completion of any such case such attorney shall return to the custodian any such material . which [has] not passed into the control of [the] court . . through the introduction thereof into the record of such case . . . .” 15 U.S.C. § 1313(d)(1).
The Government’s claim of privilege clearly is sustained by the statute where the Government does not intend to offer CID material into evidence in a subsequent action, such as the present action. The defendant does not appear to contend otherwise. Moreover, the Government has said to the Special Masters that it does not intend to use any CID material as evidence in this case. Apparently, any material uncovered through the CID procedure has been, so to speak, rediscovered by the Government through voluntary production or subpoena after commencement of the present litigation. Hence, the CID material relevant to this case may well indefinitely repose with the custodian, and thus remain privileged.
However, as trial impends the Government may find it wishes to use some part of the CID material, and the question would arise as to the effect of this Guideline in that eventuality. The material might be used either in trial or in the pretrial phase, for example in connection with a Rule 30 deposition. Although the question is in a sense hypothetical, it directly implicates the intended meaning of the Guideline. Subparagraph (b) of the Guideline seeks to make clear our conclusion in this respect.
The problem is to reconcile the confidentiality provision of § 1313(c)(3) with the provision of § 1313(d)(1) authorizing the Government to use CID material in a suit subsequent to the investigation that yielded the CID material. A literal reading of the two provisions admits of the con
A further difficulty in construing the statute arises when attention is focused on the possibility that the Government’s trial staff might make use of CID material at the pretrial stage. The statute plainly contemplates that CID investigations may be followed by Government civil antitrust suits, which of course, are governed by the Federal Rules of Civil Procedure. And under those Rules, apart from the statute, all material collected by the Government would be discoverable even if the Government made no use of it (subject, of course, to the work product and other relevant privileges). Indeed, the most proper candidate for discovery would be relevant material the Government did not wish to use, for such would be most likely to be advantageous to a defendant. However, that would mean that the CID privilege is nothing more than a statutory version of the work product rule and has no independent force of its own.
The question posed then is how the statutory privilege works in conjunction with the Federal Rules of Civil Procedure and the concepts of fairness and mutuality that underlie them. One interpretation would be that the CID privilege lapses if the Government trial staff makes any use of the material after the investigation has been completed. On this view, the documents would lose their privileged status if checked out of custody by any member of the trial staff in the course of their work.
Such a construction is hard to square with the tenor of the statute, however. Specifically, it would make no sense to provide that the custodian shall receive back unused material at the end of the litigation, if the material was subject to discovery immediately upon its being checked out. Hence, the statute must contemplate some degree of use of the material that does not lay it open to discovery. At the same time, the statute should not be construed to allow the Government undue advantages in pretrial discovery, for the same reason it should not be construed to allow such advantage at the trial stage. We conclude therefore that release of CID material for perusal by the Government trial staff does not terminate the privilege, but that the privilege does terminate if the material is put to any more direct use in the pretrial stage.
GUIDELINE NO. 27.2
There is an absolute privilege under 13 U.S.C. § 9 for raw data collected by the Bureau of the Census.
Comment on Guideline No. 27.2
Statutory privileges are to be narrowly construed. Freeman v. Seligson,
Nevertheless, 13 U.S.C. § 9 plainly expresses the legislative intention to make raw census material collected by the Bureau of Census absolutely privileged. The present version of the statute is a legislative response to St. Regis Paper Co. v. United States,
9. Information as confidential; exception (a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title—
(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or
(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or
(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.
No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census*649 reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding. (Emphasis added.)
Although the statute does not confer immunity from process on the original reports, it evidently presupposes that 9(a)(3) seals them from examination by persons outside the Bureau.
GUIDELINE NO. 27.3
There is an absolute privilege under 15 U.S.C. § 176a for raw data collected by the Bureau of Economic Analysis as delegate of the Bureau of Foreign and Domestic Commerce.
Comment on Guideline No. 27.3
The provisions of this statute are not as explicit as those of 13 U.S.C. § 9. However, given the language of the statute and the similarity of its purpose and content to that of 13 U.S.C. § 9, we think it should be similarly construed.
GUIDELINE NO. 27.4
There is an absolute privilege under 22 U.S.C. § 3104(c) for raw data collected by the Bureau of Economic Analysis as delegate of the Department of Commerce.
Comment on Guideline No. 27.4
The language of § 3104(c) falls short of the formula of 13 U.S.C. § 9. However, § 3104(c) refers to the possibility of a person seeking to “compel the submission or disclosure of any report ... or any copy . . .,” and proscribes it. The only methods we can conceive by which a person could “compel” such disclosure of the original report would be use of legal process, specifically a subpoena or demand for production of documents under the Federal Rules, or a demand under the Freedom of Information Act. If focus is confined to the original report, it is possible to say that the statute intended to preclude FOIA production but not necessarily production by subpoena. However, the production that no person may “compel” also includes “any copy.” The copy contemplated no doubt is the one retained by the “person who . . furnished such report.” Production of a copy in the hands of such a person could be compelled only through subpoena and not FOIA, for the latter runs only against the Government. Thus, textual analysis suggests that the prohibition addressed to disclosure of the original report refers not only to FOIA compulsion, but also the compulsion of subpoena. That makes the privilege absolute. Such seems to have been Congress’ intention. See H.R. Report No. 94-1490, September 21, 1976, U.S.Code Cong. & Admin. News 1976, p. 4663. That inference is strengthened by the fact that the statute was enacted in 1976, a time when the general direction of legislative policy was to expand the types of Government matters open to disclosure. In that milieu, it seems unlikely Congress was unconscious of the interpretation that naturally would be placed on its language. Having thus concluded that the referent of “compel” is legal process, we further conclude that the statute confers an absolute privilege against that compulsion.
GUIDELINE NO. 27.5
There is no statutory privilege afforded to Shipper’s Export Declarations (SEDs) under 50 U.S.C.App. § 2406(c),1 or to foreign commerce and trade information under 13 U.S.C. §§ 301(a) and 3022 or generally created by 22 U.S.C. § 286f(c) which prescribes criminal penalties for the disclosure of information “otherwise than in the course of official duty.”3
Comment on Guideline No. 27.5
With regard to the claim under 50 U.S.C.App. § 2406(c), the case law in the District of Columbia is clear that no privilege attaches to Shipper’s Export Declarations. American Jewish Congress v. Kreps,
Relative to 13 U.S.C. §§ 301(a) and 302, neither the statutes nor the regulations promulgated pursuant thereto confer on foreign commerce and trade data collected by the Department of Commerce a privilege against discovery by a civil litigant. The contrast in terminology between this statute and its implementing regulations in 13 U.S.C. § 9 is sharp. Indeed, given the general policy favoring discovery, a privilege will not be inferred unless the statute or regulation incorporates something approximating the formula of 13 U.S.C. § 9. Cf. St. Regis Paper Co. v. United States,
For the same reasons, we conclude that the provisions of the Bretton Woods Agreement Act appearing in 22 U.S.C. § 286f(c) do not confer a privilege against disclosure demanded under the Federal Rules of Civil Procedure. It was designed to prevent misuses such as industrial espionage and does not address disclosure pursuant to judicial process.
We have carefully considered the presentation by the Department of Commerce, both its original brief and its comment on the draft of this Guideline. The Department cites no legal authority for its contention; the authority is adverse to its position. If, as held in American Jewish Congress, SEDs are subject to disclosure under FOIA, a fortiori they are discoverable under the Civil Rules.
The Department makes a strong case on grounds of policy that the material referred to in
For essentially the same reasons there is no basis for a qualified privilege. Making the privilege qualified rather than absolute simply shifts the process of weighing disclosure versus confidentiality from the point of drawing a general rule to the point of applying the rule. That would restate the problem concerning the documents involved here.
Whether the privilege is absolute or qualified, its objective is largely served by the Protective Order. The Department contends that the Protective Order really is not protective, i. e., it does not assure that use of this material will be confined to the purposes of this litigation. It may well be that shippers fear any disclosure, even a guarded one, is the equivalent of total disclosure. Hence the Department no doubt is correct in suggesting that shippers will be uneasy, and perhaps deterred, by the absence of even a qualified privilege. But again that only restates the problem of choice in whether there should be a privilege. We believe the Protective Order gives substantially the assurance that the Department seeks.
Finally, we think it beside the point that there are thousands or millions of documents involved. That goes to the scope of discovery, which is under the supervision of the Magistrate, and not to privilege, which is our responsibility.
We are mindful of the seriousness of the matters advanced by the Department. If we were members of Congress we might well support legislation making the Department involved immune not only from FOIA, but also from discovery under the Civil Rules. We are also mindful that the Department, like the other agencies subjected to discovery in this action, have sought to be cooperative in producing documents. In this respect the Department has displayed the official responsibility one would hope for. Its lawyers have demonstrated competent professional responsibility on their part. Yet in these matters the Department and its legal counsel are guided by law, as indeed we are. In the matter in question here, the law seems quite clear.
These guidelines may be modified by the Special Masters to the extent that experience with their application or other subsequent developments reveal that their modification is appropriate. The parties will not be foreclosed from proposing such modifications on the ground that they failed to make such proposals previously.
ORDER
It is hereby ordered that the above guidelines will form the substantive basis upon which claims of privilege will be resolved by the Special Masters.
/s/ Geoffrey C. Hazard, Jr.
/s/ Paul R. Rice
Filed: February 28, 1979.
As amended by Order dated August 10, 1979.
SPECIAL MASTERS’ PROCEDURAL GUIDELINES FOR THE SUBMISSION OF PRIVILEGE CLAIMS
PROCEDURAL GUIDELINE NO. 1
The rules of procedure and the law of privilege to be applied by the Special Masters shall be set forth in a First Report to be submitted to the Court in accordance with Rule 53(e) of the Federal Rules of Civil Procedure and the Order of Reference. Within ten days after being served with notice of the filing of the First Report, any party may file and serve written objections to that Report.
PROCEDURAL GUIDELINE NO. 2
Within ten days of the expiration of the period to file objections, if no objections are filed to the First Report, and otherwise within ten days of the date the approval or modification of the First Report by the Court becomes final, each party shall submit to the Special Masters a Revised Index listing each document from the party’s previous index as to which that party asserts a claim of privilege under the law of privilege adopted by the Court. The Revised Index shall contain the following information for each document listed: document number, date of document, file or files in which the document was located, author, distribution (broken down as to addressees and other distributees), a summary of the document, and the specific privilege or privileges asserted to be applicable (including a reference to any statute asserted to be applicable). All documents that were listed on a party’s previous index but are not listed on that party’s Revised Index shall be produced immediately.
PROCEDURAL GUIDELINE NO. 3
Within three weeks after the submission of the Revised Index, the party claiming a privilege with respect to a particular document shall submit to the Special Masters the document itself and the substantiating materials required by Privilege Guideline No. 2. Copies of all substantiating materials, but not the document itself, shall be served upon the party challenging the claim of privilege.
When a document with respect to which privilege claims have been asserted is delivered to the Special Masters under Procedural Guideline No. 3, all privilege claims which have not been asserted in the accompanying index are waived. If a greater number of privilege claims are raised in the index under which a document is submitted than are marked on the face of the document or listed in the supporting affidavit, see Guideline No. 10.1 (for example, the index claims the privileges of attorney-client and work product, but on the face of the document or in the supporting affidavit only the work product claim is marked or otherwise asserted), the assertion of the omitted claim will be construed as being dropped and thereby waived.
PROCEDURAL GUIDELINE NO. 4
Within two weeks after the submission of documents claimed to be privileged and substantiating materials, the challenging party may file a response to any claim of privilege. When the privilege asserted is a qualified one, the challenging party may elect to attempt in its response to establish reasons why the material should be disclosed if the privilege asserted is applicable (as required under Special Masters’ Guideline for the Resolution of Privilege Claims No. 4) or may elect not to attempt to make such a showing until after the Special Masters have determined preliminarily that the qualified privilege applies (as provided for in Procedural Guideline No. 8).
PROCEDURAL GUIDELINE NO. 5
A party asserting a claim of privilege shall have one week to reply to any response to that claim of privilege.
PROCEDURAL GUIDELINE NO. 6
(a) When a privilege claim is made on a privilege not dealt with in the Guidelines, the party asserting the privilege shall accompany the claim with a brief on the law of the privilege in question.
(b) Within two weeks after the assertion of such a claim, the opposing party may file a responsive brief. The Special Masters shall promptly thereafter formulate a draft guideline on the privilege.
(c) Within one week after the Special Masters have circulated their draft guideline, the parties may submit comments concerning it. The Special Masters shall then adopt the guideline in final form.
(d) Within one week after the Special Masters have issued the guideline in final form, the party asserting the privilege may submit supplementary substantiating materials in accordance with the ruling.
(e) Within one week after the submission of such materials, the opposing party may file a response to the claim.
PROCEDURAL GUIDELINE NO. 7
The Special Masters shall circulate proposed Findings of Fact and Conclusions of Law with respect to each document submitted to them for review. Within ten days after receipt by the parties of the proposed Findings of Fact and Conclusions of Law, they shall submit comments to the Special Masters on the proposed Findings and Conclusions. During this period the parties may also request leave to submit additional materials for consideration by the Special Masters. Following their consideration of the comments of the parties and any additional materials they permit to be submitted, the Special Masters shall issue a Report to the Court of their Findings of Fact and Conclusions of Law in accordance with paragraph 3 of the Order of Reference.
PROCEDURAL GUIDELINE NO. 8
If the Special Masters determine that a document falls within a qualified privilege and if the challenging party has elected to defer its attempt to make a showing why the document should be disclosed, then the challenging party may, within time limits established by the Special Masters, but not
PROCEDURAL GUIDELINE NO. 9
Upon the filing of a Report with the Court in accordance with Procedural Guideline No. 8, each party shall have ten days within which to file objections with the Court in accordance with Rule 53 of the Federal Rules of Civil Procedure. If at the end of this ten-day period no objections have been filed to a ruling that a particular document must be produced, that document shall be produced immediately. Otherwise, the parties shall proceed in accordance with Rule 53 unless different review procedures are established by the Court.
PROCEDURAL GUIDELINE NO. 10
At the time that the parties submit documents and substantiating materials to the Special Masters under Procedural Guideline No. 3 above, the parties shall also submit indices meeting the requirements of Procedural Guideline No. 2 that list all remaining documents withheld by them from production on grounds of privilege as of one week prior to that date. Thereafter, the parties and the Special Masters shall proceed in accordance with the sequence and time intervals set forth in Procedural Guidelines No. 3-9 above.
PROCEDURAL GUIDELINE NO. 10.1
When documents are delivered to the Special Masters, they shall either be marked to indicate the privilege claims that are being raised with regard to them or accompanied by a supporting affidavit in which the privilege claims shall be raised individually as to each document. If a party elects to mark its documents, the following color codes shall be employed: Fact work product —blue; opinion work product — yellow; attorney-client — red; inter-agency and intraagency deliberative — green; and government investigative — black. If this marking method is used for the assertion of other privileges, the accompanying affidavit should indicate the color code being used.
PROCEDURAL GUIDELINE NO. 11
When only a portion of a document is claimed to be privileged, the party asserting the privilege shall indicate what portion of the document is claimed to be privileged. If different privileges are asserted to be applicable to the same document (e. g., fact and opinion work product privileges), they shall be indicated in a manner so that the Special Masters may discern easily what privilege is claimed to apply to each portion of the document. When the Special Masters rule that only a portion of the document is privileged, they shall indicate what portions are to be produced. Each party shall then be responsible for masking and producing its own documents in accordance with the Special Masters’ ruling.
PROCEDURAL GUIDELINE NO. 12
With regard to the assertion and documentation of privilege claims under these Procedural Guidelines, all documents to be served on the Special Masters and opposing party will be hand delivered.
ORDER
It is hereby ordered that the above Guidelines will form the procedural basis upon which privilege claims will be submitted to and resolved by the Special Masters.
/s/ Geoffrey C. Hazard, Jr.
/s/ Paul R. Rice
Dated: June 1, 1979.
As amended by Order dated May 11, 1979.
As amended by Order dated June 1, 1979.
As amended by Order dated August 10, 1979.
On February 13, 1980 the Court granted a motion of the defendants American Telephone & Telegraph Co. to compel compliance with a subpoena duces tecum directed to Litton Industries, Inc. (Litton) which requested for purposes of this case all documents which Litton had previously produced and which defendants had previously copied in connection with Litton Systems, Inc., et al. v. AT&T, et al., 76 Civ. 2512 WCC (S.D.N.Y.), an antitrust action Litton itself had brought against these defendants. The Order further provided that the filing with the Court by Litton of its consent to the use by defendants in this case of the documents produced and copied in the private antitrust action would constitute compliance.
As the Court pointed out in its February 13, 1980 Order, AT&T is already in possession of the approximately 500,000 documents at issue. Thus, as was noted then, there does not now appear to be any need for the physical production of the identical documents from the identical party (Litton) to the identical recipient (AT&T) a second time. The only reason for not simply using the same documents in this litigation was Litton’s reliance on the fact that it had furnished the documents to AT&T under a protective order issued by the United States District Court for the Southern District of New York in the course of the litigation between these two parties in that district. Absent Litton’s agreement to have AT&T use these documents in this case — in addition to their use in the case for which they were previously produced — there appeared to be no alternative
The Court fully recognized the wastefulness of the procedure, and its essential irrationality, and it therefore offered to Litton the option of giving its consent to the use of the documents already in AT&T’s possession in lieu of a second production. Although as noted supra note 1, MCI Communications Corp. promptly availed itself of the consent option, Litton refused. It is at that juncture that defendants — seeing no choice but to proceed with the time-consuming and expensive process of searching once more Litton’s files and records for documents which it already has in its possession and copying those same documents a second time — applied for an order to compensate it for the costs, expenses, and attorneys’ fees related to that inspection and copying.
Litton filed an opposition to the motion which raises a number of issues and which is accompanied by a number of exhibits.
The discovery process, a major and useful tool of modern litigation, has in practice often become in effect a trial by combat, in which the litigant most able to afford the necessary expense or most willing to spend (usually corporate) funds will eventually prevail by hiring a law firm willing to engage in needless and endless rounds of discovery maneuvers. Unnecessary requests are made, unnecessary objections are interposed, there are repeated motions to compel and oppositions to such motions, until finally the opposing party may run out of either funds or stamina. A number of authorities have commented on this trend,
Certainly, the courts must be cautious not to frustrate legitimate assertions of rights by those subjected to discovery requests, whether in the form of subpoena or otherwise. Thus, sanctions, costs, attorneys fees, and the like, should not be awarded where there is any risk that such an award would chill the assertion of such rights. But here the Court has fully considered the subpoena question, entertained extensive briefs, and gave Litton the option of a simple consent. Still Litton refused, and it is a fair characterization of the record to conclude that this refusal is based on nothing more substantive than that Litton “does not feel like” consenting and prefers instead to have the defendants spend the time and money to conduct an extensive search and copying operation. In these special circumstances, it is not inappropriate to have Litton pay for the exercise.
Litton has argued that the Court lacks the authority to require it to bear the costs of searching and copying. However, a number of decisions under Rule 37, Fed.R.Civ.P., explicitly allow the imposition of costs in circumstances where recalcitrance has been shown. See National Hockey League v. Metropolitan Hockey Club,
In an effort to minimize the problem notwithstanding Litton’s recalcitrance, defendants have suggested that both the search for documents and the costs associated therewith be limited to the approximately 35,000 documents which were marked confidential in the course of the private litigation. While until recently Litton had not made its position entirely clear, the Court assumed in its February 13, 1980, order that the principal objections related to those documents. Now, in connection with the motion for costs, Litton has stated explicitly (Opposition, p. 6) that “defendants are free to use the other 465,000 documents as they see fit in this case and have
However, with respect to those 35,000 documents still at issue, Litton shall search its files and shall make available to defendants within twenty days of the date of this Order those documents which defendants previously copied pursuant to Litton’s production in the private litigation between Litton and AT&T and which Litton at that time designated as being confidential.
For the reasons stated, it is this 14th day of May, 1980,
ORDERED That defendants’ motion for an order to require Litton Industries, Inc. to bear costs, expenses, and attorneys fees be and it is hereby granted in part and denied in part, and it is further
ORDERED That Litton Industries, Inc. be and it is hereby directed forthwith to search its files for all the documents previously produced to defendants in Litton Systems, Inc. v. AT&T, et al., 76 Civ. 2512 WCC (S.D.N.Y.) which Litton in that action marked as being confidential, and to make such documents available to defendants for copying within twenty days of the date of this order, and it is further
ORDERED That the costs and expenses of such search, production, and copying shall be borne by Litton Industries, Inc., the precise amount of any costs expended by defendants in connection therewith to be determined in a subsequent proceeding, and it is further
ORDERED That defendants’ request for attorneys fees be and it is hereby denied, except for fees for the time attorneys and others may expend in the review of the documents produced by Litton, and it is further
ORDERED That the cross-motion of Litton Industries, Inc. for costs be and it is hereby denied.
Notes
. United States v. Nixon,
United States v. Reynolds,
Diversified Industries, Inc. v. Meredith,
NLRB v. Harvey,
In re Ampicillin Antitrust Litigation, [1978-1] Trade Reg.Rep. (CCH) 1! 62,043 (D.D.C.1978). “While the privilege serves a very important purpose, the Court is aware of the fact that it may nevertheless be an obstacle to the investigation of the truth. Therefore, the privilege ought to be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.’ ” Id. at 74,509.
Jabara v. Kelley,
. FTC v. Lukens Steel Co.,
United States v. Covington & Burling,
. United States v. Reynolds,
United States v. Pfizer, Inc.,
Committee for Nuclear Responsibility, Inc. v. Seaborg,
Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp.,
Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,
. United States v. United Shoe Machinery Corp.,
. Natta v. Hogan,
United States v. United Shoe Machinery Corp.,
. SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed,
Commonwealth of Puerto Rico v. SS Zoe Colocotroni,
. Zenith Radio Corp. v. Radio Corp. of America,
United States v. United Shoe Machinery Corp.,
. In re Ampicillin Antitrust Litigation, [1978-1] Trade Reg.Rep. (CCH) 1162,043 (D.D.C.1978). The particular employee or representative of the corporation must have made a communication of information which was “reasonably believed to be necessary to the decision-making process concerning a problem on which legal advice was sought.” Id. at 74,510.
Hercules, Inc. v. Exxon Corp.,
Jack Winter, Inc. v. Koratron Co., Inc.,
. United States v. Nobles,
Hickman v. Taylor,
Spaulding v. Denton,
Burlington Industries v. Exxon Corp.,
Thomas Organ Co. v. Jadranska Slobodna Plovidba,
. United States v. Pfizer, Inc.,
United States v. Leggett & Platt, Inc.,
Duplan Corp. v. Moulinage et Retorderie de Chavanoz,
Burlington Industries v. Exxon Corp.,
. United States v. Pfizer, Inc.,
Duplan Corp. v. Moulinage et Retorderie de Chavanoz,
Marshall v. Vermont Food Industries, Inc., 23 F.R.Serv.2d 1511 (D.Vt.1977). In an action by the Secretary of Labor under the Fair Labor Standards Act, the court held that the defendant was not entitled to discovery of statements or other materials emanating from sources other than defendant’s employees, since they were the work product of plaintiffs counsel and defendant had not made the showing of “substantial need” and relative inaccessibility required to overcome the limited protection afforded by the work product doctrine.
Boyce v. Visi-Flash Rentals Eastern, Inc., 22 F.R.Serv.2d 1445 (D.Mass.1976). In a wrongful death action arising out of an automobile accident, defendant was not entitled to discover statements taken by plaintiffs attorney from eyewitnesses to the accident where it appeared that the information might be available by deposing the witnesses. The statements were held to be the work product of the attorney. “A party seeking documents that allegedly are subject to the work product doctrine has a heavy burden of establishing they are essential for the preparation of its case. . . . ‘Work product’ is discoverable upon the showing of substantial need by the moving party and an inability to obtain its equivalent by other means. . . . Consequently, work product material will be denied if the party seeking discovery can obtain the desired information by taking the deposition of witnesses.” Id. at 1446.
Spaulding v. Denton,
SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). Once the threshold requirement has been met, the resisting party demonstrating that the disputed documents were in fact work product, “the movant must then proceed to establish both a ‘substantial need’ for the material as well as
Burlington Industries v. Exxon Corp.,
Xerox Corp. v. IBM Corp.,
Bird v. Penn Central Co.,
Arney v. George A. Hormel & Company,
. Hickman v. Taylor,
United States v. Pfizer, Inc.,
Harper & Row Publishers, Inc. v. Decker,
SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). In setting forth the line of inquiry required of a court called upon to rule on a claim of work product protection for resisting production of documents, the court stated: “Initially, there must be a demonstration by the resisting party that the disputed material has in fact been prepared ‘in anticipation of litigation or for trial.’ Once this threshold requirement is met
Duplan Corp. v. Deering Milliken, Inc.,
Xerox Corp. v. IBM Corp.,
Bird v. Penn Central Co.,
Contra Decisions:
One court has held opinion work product absolutely immune from discovery. See, Duplan Corp. v. Mouiinage et Retorderie de Chavanoz,
. Duplan Corp. v. Peering Milliken, Inc.,
Stix Products, Inc. v. United Merchants & Manufacturers, Inc.,
Stanley Works v. Haeger Potteries, Inc.,
Transmirra Products Corp. v. Monsanto Chemical Co.,
Vilastor-Kent Theatre Corp. v. Brandt,
. Moore-McCormack Lines, Inc. v. ITO Corp.,
. NLRB v. Sears, Roebuck & Co.,
Kerr v. United States District Court for Northern District of California,
Pierson v. United States,
Firestone Tire & Rubber Co. v. Coleman,
Pleasant Hill Bank v. United States,
Verrazzano Trading Corp. v. United States,
McCormick on Evidence § 108 at 233 (Cleary ed. 1972). “Any person is eligible to proceed under the [Freedom of Information] Act; no standing or showing of need for the desired information is exacted. As a result, the justifications for shutting off information under the Act are in some instances of lesser dimension than would warrant withholding information from a litigant with a genuine need for it in the litigation. Accordingly, the Act, in excepting certain matters from its disclosure provisions, does not purport to make them privileged in an evidentiary sense, although it does represent a significant Congressional expression of what areas are sensitive and does overlap evidentiary privilege in several instances.”
. EPA v. Mink,
Mead Data Central, Inc. v. United States Department of the Air Force,
Smith v. FTC,
Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena,
Kaiser Aluminum & Chemical Corp. v. United States,
. NLRB v. Robbins Tire & Rubber Co.,
Bristol-Myers Co. v. FTC,
Brown v. Thompson,
Jabara v. Kelley,
Kinoy v. Mitchell,
Frankenhauser v. Rizzo,
. Roviaro v. United States,
Black v. Sheraton Corp. of America, 184 U.S. App.D.C. 65,
Westinghouse Electric Corp. v. City of Burlington, Vermont,
Mitchell v. Bass,
Contra Decisions:
Alliance to End Repression v. Rochford,
United States v. Swift & Co.,
. United States v. Nixon,
. United States v. Reynolds,
. Niemeier v. Watergate Special Prosecution Force,
Cooper v. Department of Navy of the United States,
American Mail Line, Ltd. v. Gulick, 133 U.S. App.D.C. 382,
Safeway Stores, Inc. v. FTC,
Smith v. FTC,
These procedural guidelines were agreed to by the parties in a joint submission to the Special Masters.
. The February 13, 1980 Order also applied to MCI Communications Corporation which has litigation against AT&T pending in the Northern District of Illinois. MCI, on February 20, 1980, filed its consent in accordance with the option contained in the February 13, 1980 Order.
. Except for a clerical correction, Litton’s motion for reconsideration of that order was denied in an order dated February 26, 1980.
. An affidavit attached to the motion stated that defendants incurred approximately $532,-000 in costs and expenses associated with Litton’s first production of the documents at issue in 1977, and it was suggested that additional costs beyond that amount may be justified at this time.
. In theory, the problem could also be solved by a dissolution or modification by the District Court in the Southern District of New York of its protective order. However, AT&T is requesting the documents for use in the litigation pending in this Court, and it is therefore this Court which must appropriately deal with this problem.
. Thus, Litton argues that defendants are delaying completion of discovery in this case to harass it because it is pursuing its own antitrust action against defendants, and that AT&T is a larger company than Litton. It is not necessary to explore these contentions for they are irrelevant to the issue presently before the Court. (It may, however, be noted that Litton is itself a vast conglomerate with considerable assets and that costs are awarded on the basis of recalcitrance, not size). Litton also argues that defendants may well know where the documents in question are located, and that they therefore should designate specific documents. The Court previously dealt with that issue in the February 13, 1980 order, at 4. Another argument — made for the first time in a reply memorandum — is that the subpoena was addressed to the wrong Litton company. The subpoena was properly, and contrary to Litton’s claim, directed to Litton Industries, Inc., which is in possession and control of the relevant documents. There is thus no basis for this last-minute claim. Finally, by way of a cross-motion, Litton requests that defendants be ordered to pay to Litton the costs of production or that Litton be relieved of its obligation to make any further production. The cross-motion has no merit whatever, either factual or legal, and it will be denied.
. The only basis advanced is that “for reasons relating to confidentiality, Litton chose to comply with the Court’s Order by producing the documents requested.” It is unclear what that cryptic statement is intended to convey. In its February 13, 1980, Order the Court fully dealt with problems of confidentiality. Further, the confidentiality of documents would of course not be more readily assured by their second production than by the use of the identical documents on the basis of their first production.
. See, Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Cal.L.Rev. 264 (1979); Withrow & Larm, The “Big” Antitrust Case: 25 Years of Sisyphean Labor, 62 Cornell L.Rev. 1 (1976); Letter of former Attorney General Bell to the Chairman of the Committee on Rules of Practice and Procedure of the Judicial Conference, p. 1 (June 27, 1978); Becker, Modem Discovery: Promoting Efficient Use & Preventing Abuse of Discovery in the Roscoe Pound Tradition,
. In his statement dissenting from the adoption by the Court of amendments to Rules 26, 33, 34 and 37 of the Federal Rules of Civil Procedure, Justice Powell stated that . all too often discovery practices enable the party with greatest financial resources to prevail by exhausting the resources of a weaker opponent. The mere threat of delay or unbearable expense denies justice to many actual or prospective litigants. Persons or businesses of comparatively little means settle unjust claims simply because they cannot afford to litigate. Litigation costs have become intolerable, and they cast a lengthening shadow over the basic fairness of our legal system.”
. The Court will impose only the costs incurred in searching and copying the files, including any attorney time legitimately extended in connection therewith. Insofar as defendants’ motion relates to attorneys fees expended in connection with the filing of the various motions and other pleadings, it will be denied.
. Where there has been no actual disobedience, the blunt contempt power is not applicable. Compare Rule 45(f), Fed.R.Civ.P.; United States v. American Telephone & Telegraph Co.,
. Note, Proposed 1967 Amendments to the Federal Discovery Rules, 68 Col.L.Rev. 271, 293-94 (1968); Wright & Miller, Federal Practice and Procedure, Civil, section 2282, pp. 758-59; United States v. Moss-American, Inc.,
. See also, address of the Chief Justice to the American Bar Association (February 3, 1980) (“the responsibility for control [of the pretrial processes] rests on both judges and lawyers. Where existing rules and statutes permit abuse, they must be changed. Where power lies with judges to prevent or correct abuse and misuse of the system, judges must act.”) 66 ABAJ 295, 296.
. Litton argues (Reply Memorandum filed April 16, 1980, at 2), that it has “no way short of making a complete total physical review of all documents produced in the New York case to determine which ones are confidential,” and that this imposes a great burden upon it. But this Court has previously held that “[a]ny burden to Litton arises solely from the fact it refuses to shortcut the subpoena route by declining to give its permission to AT&T to use the microfilm it already has, and it is thus entirely self-inflicted.” February 13, 1980 Order, at p. 4.
. United States v. Reynolds,
Kinoy v. Mitchell,
Carter v. Carlson,
Zenith Radio Corp. v. Radio Corp. of America,
United States v. United Shoe Machinery Corp.,
. Attorney-Client Privilege
FTC v. Lukens Steel Co., 444 F.Supp. 803 (D.D.C.1977). In holding that the defendant met its burden of establishing the element of confidentiality, part of the attorney-client privilege, the court clearly stated the rule that “[t]he party seeking the benefit of the privilege has the burden of demonstrating its applicability.” Id. at 806.
United States v. Covington & Burling,
Work Product Privilege
United States v. Chatham City Corp.,
Boyce v. Visi-Flash Rentals Eastern, Inc., 22 F.R.Serv.2d 1445 (D.Mass.1976). In a death action arising from a motor vehicle accident in which plaintiffs decedent was one of six passengers, defendant sought to discover statements taken by plaintiffs attorney from eyewitnesses to the accident. Holding that work product is discoverable only upon a showing of need by the moving party, the court, after holding that these documents were work product of the attorney, denied defendant’s motion for failure to make an adequate showing of need. “A party seeking documents that allegedly are subject to the work product doctrine has a heavy burden of establishing they are essential for preparation of its case. . . . ‘Work product’ is discoverable upon the showing of substantial need by the moving party and an inability to obtain its equivalent by other means. . Consequently, work product material will be denied if the party seeking discovery can obtain the desired information by taking deposition of witnesses. . . . Under Rule 26(d) of the F.R.Civ.P., this court concludes that the defendant must first depose both parties in this matter, use interrogatories, or Rule 45 and pursue the matter on that basis before further action is taken with respect to obtaining the statements of the parties.” Id. at 1446.
Burlington Industries v. Exxon Corp.,
SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). In a securities fraud suit brought by the Securities & Exchange Commission, the court was called to rule upon three discovery motions. Against one motion urged by the Securities & Exchange Commission, the defendant law firm invoked work product protection. In explaining the procedural format for judicial consideration of work product, the court stated: “Initially, there must be a demonstration by the resisting party that the disputed material has in fact been prepared ‘in anticipation of litigation or for trial.’ Once this threshold requirement is met the movant must then proceed to establish both a ‘substantial need’ for the material as well as an inability to secure an equivalent thereof without undue hardship.” Id. at 1305. The court ruled that work product protection was not applicable and did not need to make a decision as to a showing of necessity.
Xerox Corp. v. IBM Corp.,
Executive Privilege
Kinoy v. Mitchell,
Smith v. FTC,
Carter v. Carlson,
. United States v. Reynolds,
Black v. Sheraton Corp. of America, 184 U.S. App.D.C. 46,
Kinoy v. Mitchell,
Smith v. FTC,
International Paper Co. v. Fibreboard Corp.,
Carter v. Carlson,
. United States v. Reynolds,
Committee for Nuclear Responsibility, Inc. v. Seaborg,
Machin v. Zuckert,
. Hickman v. Taylor,
United States v. Pfizer, Inc.
Marshall v. Vermont Food Industries, Inc., 23 F.R.Serv.2d 1511 (D.Vt.1977). In an action by the Secretary of Labor under the Fair Labor Standards Act, the court held that defendant was not entitled to discovery of statements or other materials emanating from sources other than defendant’s employees, since they were the work product of plaintiff’s counsel and defendant had not made the showing of “substantial need” and relative inaccessibility required to overcome the limited protection afforded by the work product doctrine.
Boyce v. Visi-Flash Rentals Eastern, Inc., 22 F.R.Serv.2d 1445 (D.Mass.1976). In a wrongful death action arising out of an automobile accident, defendant was not entitled to discover statements taken by plaintiff’s attorney from eyewitnesses to the accident where it appeared that the information might be available by deposing the witnesses, the statements were work product of the attorney. “A party seeking documents that allegedly are subject to the work product doctrine has a heavy burden of establishing they.are essential for the preparation of its case. . . ‘ . ‘Work product’ is discoverable upon the showing of substantial need by the moving party and an inability to obtain its equivalent by other means. . Consequently, work product material will be denied if the party seeking discovery can obtain the desired information by taking the deposition of witnesses.” Id. at 1446.
Spaulding v. Denton,
SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). Once the threshold requirement has been met, the resisting party demonstrating that the disputed documents were in fact work product, “the movant must then proceed to establish both a ‘substantial need’ for the material as well as an inability to secure an equivalent thereof without undue hardship.” Id. at 1305.
Kaiser Aluminum & Chemical Corp. v. United States,
. EPA v. Mink,
Mead Data Central, Inc. v. United States Department of the Air Force,
Duplan Corp. v. Moulinage et Retorderie de Chavanoz,
Cuneo v. Schlesinger,
Committee for Nuclear Responsibility, Inc. v. Seaborg,
Swanner v. United States,
Machin v. Zuckert,
Colton v. United States,
Smith v. FTC,
Burlington Industries v. Exxon Corp.,
United States v. United Shoe Machinery Corp.,
. Mead Data Central, Inc. v. United States Department of the Air Force,
. Diversified Industries, Inc. v. Meredith,
United States v. Aluminum Co. of America,
McCormick on Evidence § 87 at 175 (Cleary ed. 1972). According to McCormick, the attorney-client privilege is based on the theory “that claims and disputes which may lead to litigation can most justly and expeditiously be handled by practised experts, namely lawyers, and that such experts can act effectively only if they are fully advised of the facts by the parties whom they represent. Such full disclosure will be promoted if the client knows that what he tells his lawyer cannot, over his objection, be extorted in court from the lawyer’s lips.”
. In re Ampicillin Antitrust Litigation, [1978-1] Trade Reg.Rep. (CCH) ¶ 62,043 (D.D.C.1978). The court lays down the first definitive D.C. approach to the corporate attorney-client privilege by requiring “relevance of the communication to a particular legal problem.” Id. at 74,511. “The communication must have been made for the purpose of securing legal advice. ... By ‘relevance of the communication to a particular legal problem,’ the Court does not intend to imply that a communication will only be protected if it, in fact, contains information necessary to the decision-making process for a particular legal problem, because such an ex post facto approach would discourage full disclosure by an employee who may not know what information is necessary. What is meant is that communications made in the reasonable belief that they contain such necessary information will be protected. However, communications which contain no such reasonable belief, either because of the status of the employee or because of the nature of the information, will not be protected.” Id. at 74,511 n. 8. Duplan Corp. v. Deering Milliken, Inc.,
Mead Data Central, Inc. v. United States Department of the Air Force,
. Mead Data Central, Inc. v. United States Department of the Air Force,
United States v. Teilier,
In re Ampicillin Antitrust Litigation, [1978-1] Trade Reg.Rep. (CCH) ¶ 62,043 (D.D.C.1978). In an antitrust suit, defendant objected to Master’s treatment of his privilege claims. The court, reviewing the Master’s records, held that if the client permits his attorney to disclose the communication to others, there can be no confidentiality. “Thus, where a business proposal is sent to counsel for legal advice, with an accompanying expressed intent to disclose the proposal to a third party, the communication will not be deemed to be made in confidence and thus will not be privileged. ... In general, the intention of the client will be a question of fact, and must be reviewed as such, and the burden is on the party asserting the privilege to establish the factual predicate for the claim.” Id. at 74,-515.
Burlington Industries v. Exxon Corp.,
Radio Corp. of America v. Rauland Corp.,
Rediker v. Warfield,
United States v. United Shoe Machinery Corp.,
. United States v. United Shoe Machinery Corp.,
, 3. Duplan Corp. v. Deering Milliken, Inc.,
Transmirra Products Corp. v. Monsanto Chemical Co.,
. Diversified Industries v. Meredith,
Harper & Row Publishers, Inc. v. Decker,
In re Ampicillin Antitrust Litigation, [1978-1]
. FTC v. Lukens Steel Co.,
Congoleum Industries, Inc. v. GAF Corp.,
City of Philadelphia v. Westinghouse Electric Corp.,
. Mead Data Central, Inc. v. United States Department of the Air Force,
In re Ampiciliin Antitrust Litigation, [1978-1] Trade Reg.Rep. (CCH) "'62,043 (D.D.C.1978). After consideration of the Master’s construction of the requirement of confidentiality, the court ruled that “an attorney communication is privileged if it would directly or indirectly reveal confidential communication by the client.” Id. at 74,513. Strictly speaking, the privilege applies only to communications made by the client to the lawyer, but in practice it is generally impossible to separate those communications from the ones made by the attorney to the client, particularly when the attorney communications will reveal the substance of the ones made by the client that are privileged. See 8 Wigmore, Evidence § 2320 at 628-29 (McNaughton rev. 1961); E. Morgan, Basic Problems of Evidence 111 (1961); Natta v. Hogan,
United States v. Covington & Burling,
SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed,
. Natta v. Hogan,
SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed,
SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). Securities & Exchange Commission staff opinions, related
United States v. United Shoe Machinery Corp.,
. Diversified Industries, Inc. v. Meredith,
Mead Data Central, Inc. v. United States Department of the Air Force,
SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed,
Syigab Steel & Wire Corp. v. Imoco-Gateway Corp.,
Duplan Corp. v. Deering Milliken, Inc.,
United States v. Aluminum Co. of America,
Burlington Industries v. Exxon Corp., 65 F.R.D 26 (D.Md.1974). In setting forth the guidelines by which the court appointed Master would judge claims of privilege, the court said, “[t]his court subscribes to the view of the court in Eutectic." Id. at 38-39. The court in Eutectic found privileged documents prepared by the corporate representatives which were communicated in confidence to each other and ultimately to the attorney, and though containing technical information, were primarily of a legal nature for the purpose of obtaining legal assistance. Thus documents prepared “to aid counsel in rendering legal assistance to the corporation, at the express or implied request of counsel, and which are primarily legal in nature, will not fall outside the scope of the attorney-client privilege merely because at their inception the communications were intracorporate.” Id. at 39.
Eutectic Corp. v. Metco, Inc.,
Rockwell Manufacturing Co. v. Chicago Pneumatic Tool Co.,
. Natta v. Zletz,
Dupian Corp. v. Deering Miliiken, Inc.,
Burlington Industries v. Exxon Corp.,
United States v. United Shoe Machinery Corp.,
. Clark v. United States,
Natta v. Zletz,
United States v. Bob,
Duplan Corp. v. Deering Milliken, Inc.,
. United States v. Brown,
Natta v. Zletz,
Natta v. Hogan,
Hercules, Inc. v. Exxon Corp.,
. Herbert v. Lando,
Spaulding v. Denton,
Rogers v. U. S. Steel Corp., 22 F.R.Serv.2d 324 (W.D.Pa.1975). The court held that materials concerning validation of defendant’s personnel procedures, which were prepared after the enactment of Title VII of the Civil Rights Act of 1964, were prepared in anticipation of litigation, although not prepared for the instant suit.
Burlington Industries v. Exxon Corp.,
SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). In fraud action brought by the SEC, some memoranda prepared during and principal to investigation of defendants were found to be in anticipation of litigation, while others were not. Documents were not in anticipation of litigation if they were prepared prior to the time the investigation ripened into preparation for litigation, “when the agency accumulates and evaluates factual material — . . .” Id. at 1310. Documents prepared after a draft memorandum to the Commission recommending institution of the injunctive suit was the point in time when it was clear litigation was anticipated.
Miles v. Bell Helicopter Co.,
Garfinkle v. Arcata National Corp.,
Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp.,
Atlanta Coca Cola Bottling Co. v. Transamerica Insurance Co.,
American Optical Corp. v. Medtronic, Inc.,
Almaguer v. Chicago, Rock Island & Pacific R.R. Co.,
Banks v. Lockheed Georgia Co.,
Arney v. George A. Hormel & Co.,
. EPA v. Mink,
Mead Data Central, Inc. v. United States Department of the Air Force,
Bristol-Myers Co. v. FTC,
Smith v. FTC,
. Wu v. National Endowment for the Humanities,
Soucie v. David,
. Kaiser Aluminum & Chemical Corp. v. United States,
. NLRB v. Sears, Roebuck & Co.,
Niemeier v. Watergate Special Prosecution Force,
Merrill v. Federal Open Market Committee of the Federal Reserve System, 184 U.S.App. D.C. 203,
Cruman Aircraft Engineering Corp. v. Renegotiation Board,
. NLRB v. Robbins Tire & Rubber Co.,
Moore-McCormack Lines, Inc. v. ITO Corp.,
Marathon LeToumeau Co., Marine Division v. NLRB,
Capitol Vending Co. v. Baker,
Black v. Sheraton Corp. of America, 184 U.S. App.D.C. 46,
Rural Housing Alliance v. United States Department of Agriculture,
Weisberg v. United States Department of Justice,
Contra Decisions:
Moore-McCormack Lines, Inc. v. ITO Corp.,
Associated Dry Goods Corp. v. NLRB,
Boyd v. Guliett,
. Roviaro v. United States,
Westinghouse Electric Corp. v. City of Burlington, Vermont,
Mitchell v. Bass,
. Roviaro v. United States,
Westinghouse Electric Corp. v. City of Burlington, Vermont,
. 50 U.S.C.App. § 2406(c) provides in part:
“[N]o department, agency, or official exercising any functions under this Act shall publish or disclose information obtained hereunder which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless the head of such department or agency determines that the withholding thereof is contrary to the national interest.”
. Under 13 U.S.C. § 301(a) the Bureau of Census has the responsibility to
“. collect information from all persons exporting from or importing into the United States and the noncontiguous areas over which the United States exercises sovereignty, jurisdiction, or control, and from all persons engaged in trade between the United States and such noncontiguous areas between those areas, or from the owners or operators of carriers engaged in such foreign commerce or trade, and shall compile and publish such information pertaining to exports, imports, trade, and transportation relating thereto as he deems necessary or appropriate to enable him to foster, promote, develop, and further the commerce, domestic and foreign, of the United States . . . .”
And pursuant to 13 U.S.C. § 302 the Secretary of Commerce
“. . . may also provide by rule or regulation, for such confidentiality, publication or disclosure, of information collected hereunder as he may deem necessary or appropriate in the public interest.”
Administrative regulations promulgated by the Secretary pursuant to these statutes appear in sections 30.90 and 30.91 in Part 30 of Title 15 of the Code of Federal Regulations (CFR). Section 30.91 provides in part:
“(a) Confidential status. The Shipper’s Export Declaration is an official Department of Commerce form prescribed jointly by the Bureau of Census and the Bureau of East-West Trade. Information supplied thereon is confidential, for use solely for official purposes authorized by the Secretary of Commerce. Use for unauthorized purposes is not permitted. Information on Shipper’s Export Declarations may not be disclosed to anyone except the exporter or his agent by those having possession of or access to any copy for official purposes, except as provided in paragraph (3) of this section.”
Paragraph (e) provides that when the Secretary determines that the withholding of information stated in the SEDs
“. . .is contrary to the national interest, he may make such information available, taking such safeguards and precautions to limit dissemination.
“In recommendations regarding such actions, the Bureau of the Census will, in general, consider that it is not contrary to*651 the national interest to withhold information on Shipper’s Export Declarations from private individuals or businesses . . or from State or local government agencies or officials, regardless of the purposes for which the information may be requested. In recommendations regarding any other requests for access to official copies, a judgment in the light of circumstances will be made as to whether it is contrary to the national interest to withhold the information, keeping in view that the maintenance of confidentiality has in itself an important element of national interest.”
. 22 U.S.C. § 286f(c) states:
(c) It shall be unlawful for any officer or employee of the Government, or for any adviser or consultant to the Government, to disclose, otherwise than in the course of official duty, any information obtained under this section, or to use any such information for his personal benefit. Whoever violates any of the provisions of this subsection shall, upon conviction, be fined not more than $5,000, or imprisoned for not more than five years, or both.”