The opinion of the court was delivered by: FULLAM
In this complex and protracted antitrust litigation, various disputes have arisen as to the scope of permissible discovery. On August 2, 1967, I entered an order disposing of various motions then pending on the subject. Reconsideration and reargument was sought by various parties, and on October 12, 1967, I entered an order amending and clarifying the order of August 2, 1967. In subsequent conferences with counsel, the court has been made aware of the desire of some of the parties to attempt an interim appeal from these orders, and the desirability of further clarification, and of an expression of the reasons for the actions taken, has become manifest.
It should be mentioned that much of the difficulty and alleged confusion stems from the fact that counsel and the court have not been dealing in terms of specific, identified documents, but rather in terms of general categories of documents, described on this record, for the most part, by counsel who have never seen them.
By way of general background, it should here be noted that these are civil actions for treble damages against a group of defendants, all but one of whom have heretofore entered pleas of nolo contendere in the United States District Court for the District of Connecticut on charges of conspiring to violate the antitrust laws of the United States. In connection with the imposition of sentence in the criminal cases, counsel for the various defendants prepared elaborate memoranda containing, apparently, a considerable amount of information as to the extent of the participation of each defendant in the alleged conspiracy, and also containing information bearing on the relationship between the prices allegedly fixed, and production costs, market allocations, etc. These memoranda were furnished to government counsel in advance of the sentencing, and were made available to the sentencing judge. After sentence was imposed, the sentencing judge ordered the court records, including the pre-sentence memoranda, sealed.
The grand jury which returned the indictments in the criminal cases had heard the testimony of various officers and employees of various defendants. Promptly after such grand jury appearances, these witnesses were interviewed at length by defense counsel, and memoranda were made summarizing the testimony given to the grand jury.
In the course of the criminal litigation, various other witnesses were interviewed by counsel, and memoranda of their statements were recorded; and counsel from time to time prepared summaries and analyses of the witnesses' statements and other aspects of the investigation. These analyses, apparently, include information obtained from documents submitted to the grand jury, employee interviews, and the "grand jury summaries."
In considering the discoverability of these various classes of documents, it is important to note that these defendants, over the strenuous objections of the plaintiffs, persuaded the court, at the very outset of the litigation to adopt the discovery program which had been worked out by agreement in similar litigation against these defendants in the United States District Court for the Southern District of New York. Counsel for the plaintiffs in the present case had not participated in the negotiations leading to the New York order, and objected to its adoption in this litigation, but defense counsel's arguments, based principally upon defense convenience, carried the day. Moreover, although disputes as to the interpretation of the New York discovery order seemingly arose virtually contemporaneously with the entry of that order in the present litigation, there has been no request to modify or clarify that order.
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 ...