It has therefore been necessary to consider not only the various contentions of the parties as to the attorney-client privilege, the work-product privilege, grand jury secrecy, the sealing order in the Connecticut court, and the various degrees of adequate cause or particularized need which must be shown to overcome these several privileges or exemptions, but also the extent to which these factors have been rendered inapplicable to the present case by reason of the New York discovery order which was adopted at defendants' insistence, as pretrial order No. 2, in the present litigation.
I. Pre-sentence Memoranda
The pre-sentence memoranda filed are properly subject to production on motion. United States Industries, Inc. v. United States District Court, 345 F.2d 18 (9th Cir.) cert. den. 382 U.S. 814, 15 L. Ed. 2d 62, 86 S. Ct. 32 (1965). However, such memoranda may be protected by the attorney-client privilege, cf. In re Scranton Corporation, 37 F.R.D. 465 (M.D. Pa. 1965), or by the work-product privilege, cf. Connecticut Mutual Life Ins. Co. v. Shields, 16 F.R.D. 5 (S.D.N.Y. 1954), Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). But disclosure to third parties destroys the privilege. D'Ippolito v. Cities Service Co., 39 F.R.D. 610 (S.D.N.Y. 1965). I am satisfied that, quite apart from the effect of pretrial order No. 2, these pre-sentence memoranda are subject to production because they were disclosed to government counsel, as well as to the court, in the Connecticut litigation. The sealing order does not affect this situation, nor would it be violated by requiring production in the present litigation. For these reasons, I have made it clear, in the orders of August 2 and October 12, that these memoranda are subject to production.
II. Counsel's Analyses, Memoranda of Witness Statements, Etc.
It is clear that the documents in this category constitute the work-product of counsel in the earlier criminal litigation, and would ordinarily be protected from discovery. Hickman v. Taylor, supra. That litigation is so closely related to the present litigation that the work-product privilege would ordinarily extend to both. Republic Gear Company v. Borg-Warner Co., 381 F.2d 551 (2nd Cir. 1967); cf. Shields v. Sobelman, 64 F. Supp. 619 (E.D. Pa. 1946). And see Insurance Company of North America v. Union Carbide Corporation, 35 F.R.D. 520 (D. Colo. 1964); Developments in the Law - Discovery, 74 Harvard Law Review 940, 1044-1045.
This privilege is not absolute but may be divested by a showing of exceptionally good cause. Alltmont v. United States, 177 F.2d 971 (3rd Cir. 1950); Transmirra Products Corp. v. Monsanto Chemical Company, 26 F.R.D. 572, 578 (S.D.N.Y. 1960). I understand this requisite to be substantially the same as the "good cause" generally required for production of documents under Rule 34. It was so held in Alltmont v. United States, supra.
It must be conceded, therefore, that the documents in this category under consideration would not be subject to production unless the provisions of pretrial order No. 2 require a different result. But it is quite clear that such is the case. Paragraph 13 of the order reads as follows:
"Each document referring or relating to any investigation by defendant or anyone on its behalf of alleged violations by it or its past or present employees of any company policy identified in the answer to Interrogatory 12, or of the Sherman Act concerning the matters referred to in Interrogatory 12 including but not being limited to reports of interviews with employees and documents concerning action to be taken with respect to such officers or employees."