The opinion of the court was delivered by: DITTER
This is a civil rights action for declaratory and injunctive relief brought by the plaintiffs to enjoin the defendants from gathering information about lawful and peaceful activities protected by the First Amendment, and from harassing and intimidating plaintiffs through a pattern of illegal acts from exercising their freedoms of speech and assembly.
Faced with general denials by the defendants, plaintiffs filed two discovery motions. First, they requested admissions by the defendants as to the authenticity of certain documents affixed to their complaint. Second, they propounded interrogatories regarding the organization, function, statutory authority, and investigative activities of the Federal Bureau of Investigation to then-defendant, J. Edgar Hoover (now by operation of FRCP 25 the defendant, Clarence Kelly). The defendants objected to the request for admissions and some of the interrogatories on the grounds that the information sought was privileged from discovery in the public interest. Plaintiffs then filed a motion to compel answers to their interrogatories and to determine the sufficiency of the objection to their request for admissions. The defendants submitted an in camera response to these motions on the issue of privilege from disclosure in the public interest. After oral argument I concluded the in camera response was proper.
The only appropriate method for considering the defendants' claim of privilege was by an ex parte in camera examination of the facts underlying that assertion. This type of procedure has been sanctioned by many courts. See, e.g., Bristol-Myers Company v. FTC, 138 U.S. App. D.C. 22, 424 F.2d 935 (1970); Machin v. Zuckert, 114 U.S. App. D.C. 335, 316 F.2d 336 (1963); Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973); Wellford v. Hardin, 315 F. Supp. 175 (D. Md. 1970); Black v. Sheraton, 50 F.R.D. 130 (D.D.C. 1970). As Judge VanArtsdalen said in Philadelphia Resistance v. Mitchell, 63 F.R.D. 125 (E.D. Pa. 1972), "Normally, I would be reluctant to invoke this procedure [ In camera inspection] for fear of tainting the impartiality of the judge by creating the impression of judicial privity with a party-litigant. But in determining the applicability of a claim of privilege, the Court is thrust into a role different than that normally assumed. Considering the possible injury from an improper exercise or non-exercise of the investigatory privilege, it is only the court, through an in camera examination that can objectively analyze the material and decide the merits of the privilege while concomitantly minimizing the effects of any disclosure."
The plaintiffs attached to their complaint photostatic copies of 11 documents which were allegedly stolen on March 8 and 9, 1971, from the offices of the Federal Bureau of Investigation located in Media, Pennsylvania. Plaintiffs' first motion, brought pursuant to FRCP 36, requested admissions by the defendants as to the genuineness of these documents. The defendants objected on the grounds that the documents contained privileged information and because they had been stolen from the FBI.
The plaintiffs contend that the doctrine of privilege is not applicable to their request for admissions. Plaintiffs argue that if the documents ever were privileged, their status has changed by reason of the fact that they were stolen, their copies widely distributed to the media, and they were discussed by various government officials. According to plaintiffs, Rule 36 is not a discovery device at all since it presupposes that the party proceeding under it knows the facts or has the documents and merely wishes his opponent to concede their genuineness, citing 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2253, at 706. In effect, plaintiffs are saying that privilege can only be asserted as to matters which have not been divulged.
I disagree. Like Rules 33 and 34, Rule 36 is specifically tied to Rule 26(b) (1), which provides that parties may obtain discovery regarding any matter "not privileged." Thus, an ". . . objection will lie if a request goes beyond the scope of discovery as broadly defined in Rule 26(b). Privileged information is not within that scope; a request is improper when a valid objection of privilege would lie if the request, reformulated as a question, were put to the party at trial." Wright & Miller, supra, § 2262, at 734. Thus, the right to object on the grounds of privilege is not lost merely because there has been disclosure.
The FBI is charged with the responsibility of investigating the activities of those who violate the law. Concomitant with the duty to investigate the criminal must exist the privilege to investigate the suspect, for until information has been acquired, classified, analyzed, and disseminated neither guilt nor innocence can be even surmised. Whether the data is true or false and whether evaluative or factual in nature, the documents in question obviously contain privileged matter, gathered by the FBI in keeping with its responsibilities. Whether or not charges have been brought or a particular subject of inquiry is guilty or innocent does not affect the privileged nature of the information any more than the existence of the privilege means that under no circumstance will the contents of the documents be disclosed.
Here, although the factors are different, the balance must be struck -- not between secrecy and disclosure, but between the policy of the law which seeks to discourage theft and the policy of the law which seeks to minimize the costs of trial and its time requirements.
There is no suggestion that any of the plaintiffs had a part in the burglary which produced the documents from the Media FBI office. It is obvious, however, that the break-in was accomplished by persons who were (or became) sympathetic with the plaintiffs, antagonistic to the defendants, or both. It follows that if the plaintiffs are permitted to capitalize on this burglary to even a limited degree, those who committed it -- and those of a similar disposition -- may be encouraged to perpetrate other offenses of a like nature for like purposes. It is equally true that to whatever degree the plaintiffs are kept from obtaining benefit from that burglary, those benefits diminish in value and correspondingly, there is less incentive for those who are tempted to participate in criminal activities of this nature. For their part, the plaintiffs have not suggested that the introduction of these documents is essential to their case, or that if the defendants' objection to the request for admissions is sustained, plaintiffs cannot proceed. All the plaintiffs say is that if the defendants will admit the documents are genuine, it will lighten plaintiffs' burden and save the court time.
Thus, the balancing test becomes easy. Tempting as the suggested conservation of judicial effort may be, to encourage burglary -- even just a little -- is too high a price to pay. It is much more important for courts to discourage crime than to promote speedy trials.
Plaintiffs argue, however, that documents stolen by third persons may be introduced in evidence -- even by the Government in a criminal case. In support of this proposition they cite Philadelphia Resistance v. Mitchell, supra, which in turn relied upon Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). While I have great respect for Judge VanArtsdalen, who wrote the decision in Philadelphia Resistance, I question the validity of the Burdeau case in the light of the law's developments over the last 53 years and decline to follow it.
Since Burdeau was decided, a whole new philosophy has developed regarding the use of evidence which has been improperly obtained. For example, in Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), state officers, without the participation of any agent of the United States, had illegally seized evidence which was then introduced in a federal criminal action despite defendant's motion to suppress. The Supreme Court set aside the conviction, marking the end of the "silver platter" doctrine which had previously allowed prosecutions based on evidence obtained illegally and handed over to federal officers.
The Supreme Court's ruling that all states must invoke the exclusionary rule of evidence in any instance of an unconstitutional search and seizure;
the limitations placed on the interrogation process for both adults
the regulation of identification procedures;
the restrictions on electronic surveillance;
and the requirements imposed for the prompt production of an accused before a magistrate
are merely illustrative of the many rulings that evidence obtained through illegal means may not be introduced.
I believe that if the Burdeau case came before the Supreme Court today, the reasoning expressed by the dissent of Mr. Justice Brandeis, in which Mr. Justice Holmes concurred, would prevail:
". . . in the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play." 256 U.S. at page 477, 41 S. Ct. at pages 576-577.
The rule which excludes evidence improperly obtained from being received in criminal cases has also been applied in civil cases, particularly those which provide for a forfeit
or tax assessments.
The desirability of deterring improper conduct is a matter which a court can properly consider in exercising its discretion as to the exclusion of evidence. In the long run, truth is better served by straightforward procedures than by deception. Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216, 1219-1220 (7th Cir. 1971).
This basic legal policy is found in other areas of the law. For instance, so far as trade secrets are concerned, an equity court can "enjoin the one in whom . . . confidence has been reposed from divulging it to third persons or from taking advantage of it himself to the injury of the one who has a right like a trade secret to have it protected as against one who has gained it by virtue of improper means." 42 Am. Jr. 2d Injunctions § 75. Where trade secrets are obtained by wrongful methods, they are not entitled to protection. Cataphote v. Hudson, 422 F.2d 1290, 1295-1296 (5th Cir. 1970).
In the area of property law, the general rule is that a person can transfer no better title to a chattel than he himself has. Thus, one who has acquired possession of property by theft cannot confer title by a sale, even to a bona fide purchaser. 46 Am. Jur. Sales § 549.
Briefly, the policy of the law is and should be to discourage theft. For the reason indicated, I conclude that defendants may invoke the privilege against disclosure in the public interest, and that on balance, the defendants' objection to plaintiffs' request for admissions as to the authenticity of the stolen documents should be sustained.
The plaintiffs also propounded to the defendant, Clarence Kelly, 143 interrogatories regarding the function, statutory authority, and investigative activities of the FBI. Many of the interrogatories were answered, but the same objection was raised as to many others, i.e., they should be privileged from disclosure in the public interest. Of the interrogatories to which objection was made, the majority were seeking data to supplement or explain matters revealed by the documents stolen from the FBI office in Media.
Judge Becker dealt with the problem of executive privilege as applies to discovery in Frankenhauser v. Rizzo, supra. He concluded, and I agree, that in a case where the privilege is asserted, the public interest in the confidentiality of governmental information must be balanced against a litigant's needs to obtain data, not otherwise available, which he requires to pursue a non-frivolous case. He then set forth ten criteria
which should be examined. Although Frankenhauser involved discovery of police investigation files, in contrast to the written interrogatories in the instant case, the governing principles are the same. In applying the various standards and comparing the competing interests, I conclude that the following interrogatories call for answers that are factual
in nature. Disclosure of this information will have little if any adverse effect on the defendants when balanced against the needs of the plaintiffs to obtain such data so they may pursue this cause of action. It will be understood, however, that the defendants' answering these interrogatories will not be construed as an admission that the documents attached to the complaint are copies of genuine FBI papers.
Interrogatories 11 and 12
should be answered. Interrogatories 42 and 59 shall be answered as to dates only. Any information as to circumstance need not be provided as it is covered by the governmental privilege, being evaluative in nature. Interrogatories 61, 91 and 129 inquire as to those persons or agencies to whom certain information is disseminated. I conclude that these interrogatories must be answered as to non-governmental persons or agencies to whom the information was made available. If such information was circulated outside the government, it loses the protection which the privilege provides. Interrogatories 134, 135, 136, 137, and 142 inquire about recorded information concerning various plaintiff organizations, or their officers, directors, members or employees. These interrogatories are to be answered as to organizations only. As far as inquiring as to directors, officers, members or employees of such organizations, such answers would be impossible to provide without plaintiffs' identifying who such individuals may be. Interrogatories 58, 81, 96, 116, 138, 139, 140, and 141 will be answered unconditionally.
The remainder of the interrogatories inquire as to FBI procedures, instructions, practices, investigative files, opinions, evaluative summaries, internal memoranda, standards, and criteria. Having applied the Frankenhauser tests, I conclude these interrogatories need not be answered.
INTERROGATORIES TO THE DEFENDANT, J. EDGAR HOOVER
The following interrogatories are served upon you pursuant to Rule 33, Federal Rules of Civil Procedure. They are to be answered separately and fully in writing under oath within thirty days. Where knowledge or information of the defendant is requested, such request includes knowledge of the defendant's agents, employees, servants, representatives and attorneys, and those acting under his control or direction or at his request.
These interrogatories are continuing in character so as to require you to file supplementary answers if you obtain further or different information before trial.
1. List all titles and sections of the United States Code and regulations promulgated thereunder which authorize in each instance the activities of agents, servants, employees, and informants of the Federal Bureau of Investigation [hereinafter "the Bureau"] described and recorded in Appendices A through K to the Plaintiff's Complaint.
2. List all sections and page numbers in the Manual of Instructions referred to in Appendix F to the Complaint containing procedures and operating instructions in each instance for the activities of agents, servants, employees, and informants of the Bureau, described and recorded in Appendices A through K to the Complaint.
3. List the title, author, and date of issuance of all memoranda, directives, orders, or other documents setting forth procedures and operating instructions of the type described in Interrogatory No. 2 which are not contained within the Manual of Instructions.
4. Append to your answer to these interrogatories copies of all materials whose identification is sought in Interrogatories 1-3.
5. Describe in detail the organizational structure of the Internal Security Division of the Bureau, including descriptions of all positions within the Division above the rank of Special Agent, areas of specific responsibility for each such position, superior officers within the Division or the Bureau to whom the person holding each such position must report and from whom he must receive and carry out instructions or directives, and the names and business addresses of all persons within the Division holding such positions above the rank of Special Agent.
7. List the title, author, and date of issuance of all memoranda, directives, orders, or other documents establishing and setting forth the organizational structure of the Internal Security Division of the Bureau described in your answer to Interrogatory No. 5.
8. Append to your answer to these Interrogatories copies of all materials whose identification is sought in Interrogatory No. 7.
10. State with regard to each job designation in Interrogatory No. 9 the number of persons so employed by the Bureau.
11. To what do the initials "SI" refer in the following sentence which comprises the third paragraph of Appendix K to the Complaint: "In disseminating reports recommending for the SI it is preferable to designate and disseminate to Secret Service immediately and put the FD-376 (the buck slip to the Secret Service) on the second Bureau copy."
12. To what do the initials "AI" refer in the following sentence in the first paragraph in Appendix G to the Complaint: "The National Coordinator for NABS is on the AI."
18. List all sections and page numbers in the Manual of Instructions referred to in Appendix F to the Complaint containing a description of or reference to the criteria or standards to be used by agents, servants and employees of the Internal Security Division and/or other Division of the Bureau in determining whether to list a particular person or organization on (a) the Security Index, and/or (b) the Agitator Index.
19. List the author, title, and date of issuance of all memoranda, directives orders, or other documents setting forth criteria or standards of the type described in Interrogatory No. 18 which are not ...