The opinion of the court was delivered by: LORD, JR.
Plaintiffs have filed a Motion For Production, pursuant to Fed. R. Civ. P. 34, for the production of twenty-five (25) reels of magnetic tape recordings of conversations between William E. Kramer of the Plumbing Fixture Manufacturers Association (hereafter "PFMA") and various members and associates of that organization. The tapes allegedly contain much relevant information relating to the price fixing conspiracy which is the subject of this present suit.
The tapes were presented before the Grand Jury in the Western District of Pennsylvania, which, on October 6, 1966, handed down indictments against defendants herein and certain individuals.
During the course of an informal conference between the government's counsel and counsel for the defendants, before June 13, 1968, defense counsel expressed concern over taking physical possession of the tapes as such possession might enable the tapes to be discovered in this proceeding. Ultimately, the defendants accepted possession of copies of the twenty-five tapes, through Mr. Sweeney on June 26, 1968. Upon learning that the Omnibus Crime Control and Safe Streets Act of 1968 had become effective on June 19, 1968 ( Public Law 90-351, 82 Stat. 197, 1968 U.S.L.W. 109 (June 19, 1968)), Mr. Sweeney refused to permit any defendant to use or hear the copies of tapes in his possession. Since receiving the tapes they have been in Mr. Sweeney's exclusive possession and have not been opened or used by anyone but are being retained by him in his safe in his Pittsburgh office.
Defendants have advanced five contentions to bar production of the tapes:
(1) Disclosure of the tapes or their contents is barred by the 1968 Omnibus Crime Act;
(2) The tapes are attorneys' work product, and neither sufficient good cause nor exceptional circumstances warranting their production has been shown;
(3) Portions of the tapes contain privileged communications between attorney and client;
(4) Production of the tapes would violate this Court's protective order of April 25, 1968; and
(5) Production of the tapes would interfere with the preparation and defense of criminal charges concurrently pending in the Pittsburgh federal court against the defendants herein and certain individual defendants.
Each merits separate discussion.
Omnibus Crime Control and Safe Streets Act of 1968
Defendants have strenuously contended that the new Omnibus Crime Act applies to the tape recordings Kramer made prior to his leaving the PFMA on August 5, 1963. Indeed, William E. Willis, Esquire, who argued defendants' brief on this issue, wrote to the Court on July 17, 1968 and stated that counsel were unable to adequately prepare their affidavits in support of their lawyer-client privilege contention, as they felt that their listening to the tapes would subject counsel to indictment under the Omnibus Crime Act. The fears of defense counsel are unfounded, for not only is it perfectly plain, from the language of the act, that the act speaks only prospectively, but defense counsel will be completely insulated ...