the criminal case, it is "work product." Undoubtedly, if defense counsel had directed the recordings to be made incident to the preparation of a specific suit, a different result might obtain. Under the present circumstances, the obtaining of the tapes is no different than the obtaining of any other item of non-privileged evidence and production is proper as there is no other source to which plaintiffs can turn for the tapes.
Defendants point out that prior to receiving possession of the copies of the tapes, some of the defense counsel listened to portions of the recordings at the Justice Department at the invitation of the government. Defendants argue that "[among] the tape recordings involved on this motion are recordings of telephone conversations between Kramer, as Secretary of the Association and James C. McKay, attorney for the Association membership. Defendants Wallace-Murray and Universal Rundle specifically refused to waive their attorney-client privilege." Judge Rosenberg has indicated that the principles of attorney-client privilege might be applicable, but that in the criminal proceedings in Pittsburgh no evidence was presented to support the assertion of the privilege. United States v. American Radiator & Standard Sanitary Corp., 278 F. Supp. 608 (W.D. Pa. 1967).
To date, no evidence has been produced in this proceeding to support the claim of privilege, although Mr. Willis' letter of July 17, 1968 does offer an explanation as to why no affidavits were filed. This court will order the production of all the tapes and portions of tapes not related to attorney-client privilege. Defense counsel are to review the tapes and transcribe those portions they feel are within the ambit of the attorney-client privilege. They are to submit these transcribed excerpts to the court, in camera if they desire, together with any affidavits they wish to supply in support of their contention of privilege. The balance of the tapes are to be turned over to plaintiffs for copying immediately.
April 25, 1968 Protective Order
It would be with extreme reluctance that this court would even entertain a motion for production that would contravene the Order of April 25, 1968 wherein this court approved counsels' agreed upon schedule of discovery. By this agreement, counsel saved the court innumerable hours of reviewing hundreds of objections to interrogatories, etc. However, the protective order, based upon plaintiffs' original Motion for Production, filed on February 7, 1967, called for documents then in defendants' possession and control. It could not have applied to documents defendants did not have. The order on its face purports to deal with plaintiffs' original motion only and does not bar the present request for production of the tapes.
Interference with Preparation of Criminal Defenses
Defendants have failed to demonstrate how the physical reproduction of the tapes at plaintiffs' expense will jeopardize the adequate preparation of the defense of the criminal action that will begin trial in Pittsburgh on November 18, 1968. The copying of the tapes will not be a time consuming matter, nor will the review of their contents by the numerous lawyers at defendants' disposal. Furthermore, there are no grounds for concern that plaintiffs will divulge the contents of the tapes to the government as the original tapes are now in the hands of the Justice Department who turned over the copies of the tapes to defense counsel.
And now, to wit, this 29th day of July, 1968 A.D., it is ordered that Plaintiffs' Motion For Production Of Certain Tape Recordings be and the same is hereby granted, with the following limitation: defendants are to review the copies of the tapes in their possession, edit those portions relating to the attorney-client privilege, and transcribe those portions, turning over the balance of the reels and unedited portions of the reels to plaintiffs immediately. It is further ordered that the edited transcripts are to be delivered to this court, within fifteen (15) days from the date of entry of this order, in camera if defendants desire, together with any affidavits and supporting briefs defendants wish to submit relating to the attorney-client issue.
And it is so ordered.
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