action for damages arising out of maritime collision; Government refused to produce investigative reports and persisted in refusal after it was unable to obtain interlocutory review; district court precluded Government from introducing evidence as to side of channel on which collision occurred
How later courts described this case
- action for damages arising out of maritime collision; Government refused to produce investigative reports and persisted in refusal after it was unable to obtain interlocutory review; district court precluded Government from introducing evidence as to side of channel on which collision occurred
- “It has been the policy of the American as well as of the English courts to treat the government when appearing as a litigant like any private individual. Any other practice would strike at the personal responsibility of governmental agencies which is at the base of our institutions.”
- Augustus N. Hand, J.
Written by the judges who cited it.
The opinion
CLARK, Circuit Judge
(concurring).
I concur, but desire to add two further suggestions. First, I think Ex parte Fahey, 67 S.Ct. 1558 , condemns the approach of Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499 , and is not to be distinguished from it; at any rate I think it desirable to express my own disagreement with the views expressed in the latter case, both in the decision itself and in the dictum expressing nostalgia for the old separation of law and equity. Second, I think we should avoid any implication of a suggestion that the Navy has, as yet, shown fully adequate grounds for refusing discovery. Certainly for the conduct of war and for purposes of national defense the proper heads of our armed forces may make a decision of the need of concealment, which the courts must respect; but I think no general principle of refusing discovery on a general statement of prejudice to its best interests can or should be applied to any branch of the government, including the armed forces. 1 Here we are dealing with matters of a war now closed, i. e., with matters of history; could the Navy refuse information in its. files as to the development of the Monitor on a present claim of privilege? We are not at war now, and I do not believe it will aid and comfort some unknown potential enemy if the Navy now states why concealment of specific information is material to national defense. The English experience seems not wholly untroubled ; compare the earlier case of Robinson v. State of South Australia [1931] A.C. 704, and the discussions in 56 Harv.L.Rev. 806; 58 L.Q.Rev. 1, 31, 232, 243, 436, 462 ; 59 Id. 7, 102; 20 Can.B.Rev. 805; 21 Id. 51; 8 Camb.L.J. 328; 58 Scot.L.Rev. 102; 60 Id. 1, with extensive reliance upon the classic limitations on executive power stated by Wigmore, 8 Evidence, 3d Ed. 1940, §§ 2378a, 2379. Now that the war is over, these scholarly discussions and frequent criticism of some of the grounds taken in the Duncan case, supra [1942] A.C. 624 (though not of the decision, which clearly involved war secrets), may lead to a reexamination of the important issue.
Compare learned discussions from somewhat differing points of view in Pike and Fischer, Discovery Against Federal Administrative Agencies, 56 Harv.L.Rev. 1125, 1129-1132, and O’Reilly, Discovery Against the United States: A New Aspect of Sovereign Immunity? 21 N.C.L.Rev. 1.