In the Matter of Grand Jury Empanelled October 18, 1979. Appeal of Edwin J. Hughes and Alfred C. Decotiis

SEITZ, Chief Judge,

concurring.

I join Parts I, II A, and IV of the opinion of the court and that portion of Part II B concerning the list of persons interviewed by Hughes.

The contempt citation in this case was based solely on Hughes’ failure to produce a list of persons he had interviewed and his refusal to answer seventeen specified questions. The government has not yet asked Hughes any questions about the content of his interviews, and the district court necessarily has not yet ruled on whether any such questions would seek work product or whether the government has shown good cause to compel disclosure of such information. Given this record, I see no need to reach these issues. Accordingly, I express no view as to that section of Part II B of Judge Gibbons’ opinion discussing whether the results of Hughes’ interviews are work product or how the government might show good cause to compel disclosure if Hughes was engaged in criminal activity.

As to the seventeen questions addressed in Part III of the opinion of the court, while the issue is not free from doubt, I agree that questions 4, 5, and 9 through 17 seek work product. Because I also agree that the government has failed, on this record, to show good cause to compel answers to all of these questions, I join in the result reached by Judge Gibbons in Part III.

ROSENN, Circuit Judge, concurring and dissenting. 1

I agree with the majority that DeCotiis’ motion to intervene should have been granted 1 and that the Schofield affidavit requirement was met. See Maj. Op., Parts I & II. I also join in that portion of Part II B which holds that the Government has made a sufficient showing to require Hughes to produce the list of lunch wagon operators he interviewed. For the reasons stated by Chief Judge Seitz, however, I agree that the portion of Part II B of Judge Gibbons’ opinion which discusses whether the results of Hughes’ interviews are work product and how the Government might show good cause to compel disclosure of those results is unnecessary in the circumstances of the case before us. Accordingly, I decline to join in that portion of Judge Gibbons’ opinion. Furthermore, I dissent from Part III of the majority opinion which sustains Hughes’ assertion of work product privilege as to those questions which deal with the manner of his investigation. Necessarily, then, I cannot join in Part IV of the majority opinion, reversing the district court’s denial of the motion to quash and vacating its order holding Hughes in contempt.

I disagree with the majority’s conclusion that the Government’s questions concerning-the manner in which the interviews were *293 conducted sought protected work product and that the Government failed to carry its burden to show sufficient “need to overcome the nondisclosure privilege.” 2 First, the questions as to the manner in which the interviews were conducted are apparently concerned with whether there was misrepresentation to or intimidation of the persons interviewed. Questions 9 through 14 pertain to surveillance of the interviewees and photographing them. Questions 16 and 17 pertain to how Hughes identified himself and whether he represented that he was acting in behalf of a Government agency. None of these questions inquire into the substance of the interviews. Furthermore, Hughes was not asked to disclose the nature of the information he sought nor was he asked to disclose the particulars of the questions he asked in his efforts to obtain that information. Thus, I do not believe they seek protected work product. Second, assuming arguendo that they do, I fail to see why more than a minimal showing of need is required in order to overcome the nondisclosure privilege.

The questions indicate that the Government is concerned with a manner of investigation or interrogation by the interviewer which might have an inhibiting effect on witnesses subpoenaed by the grand jury. I believe the Government’s showing was sufficient to require disclosure of that information under the Amerada-Hess standard. As in Amerada-Hess, these questions do not directly or indirectly reveal the mental processes of DeCotiis, Hughes’ employer. Nor do they furnish any information as to the content of any statement made by those Hughes interviewed. Thus, I fail to understand why the showing required of the Government as to these questions should be any higher than that required to compel production of the list of those interviewed, a burden which the majority holds the Government has met.

4. For how long have you had this occupation?

5. What are your duties in your job?

The length of time Hughes has been engaged in his occupation in no way threatens to reveal DeCotiis’ mental processes, which is the primary concern of the work product privilege. Although perhaps a somewhat closer issue, the same is true of question 5. Hughes is being asked to describe, in a general way, the functions he performs as an investigator. He is not being asked to reveal DeCotiis’ directions to him in this case or in any other matter.

Accordingly, I would affirm the order of the district court denying the motion to quash and holding Hughes in contempt.

. I believe, however, that the district court’s error in denying DeCotiis’ motion to intervene was harmless. At least in the circumstances of this case I believe that Hughes has adequately protected the work product privilege of DeCoti-is. The majority apparently agrees, choosing to base its reversal of the district court upon other grounds.

. I also disagree with the majority’s conclusion that questions 4 and 5 seek protected work product. Those questions are: