Brief for the Petitioner — Bernard M. Decker, United States District Judge v. Harper & Row Publishers, Inc.

Supreme Court brief1971

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3n the

sSupceme Court of - Bnted States

Ocronr r TERM, mye ay

HONORABLE BERNARD M. DECKER,

UNITED STATES DISTRICT JUDGE, et al.,

_ Petitioners,

V8.

HARPER & ROW. PUBLISHERS, INC, et al.,

aes Respondents.

On Writ of Certiorari to the United States

Court of Appeals fer-tii® Seventh Circuit -

BRIEF OF PETITIONERS

Lee. A. FREEMAN

Lee A. Freeman, Jr.

One Narth LaSalle Street

Chicago, Illinois | 60602

(List of Counsel’ for

Petitioners continued

on inside cover)

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STN EMERSON Ty PEO AM LPI PORTA SO LER Ie .

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Wiii1aM J: Scort

_ Attorney General -

John P. Meyer

Special Assistant. Attorney =

General

. State of. ILirors— ;

CHAUNCEY H. Brownins,

JR:

Attorney General —

Gene Hal Williams *

Deputy

. State of ‘West VIRGINIA

"T EODORE L. SENDAK

Attorney General

Wendell C. Hamacher

Assistant Attorney General.

State of Inprana.

Crawrorp C. ‘Martin

~~ Attorney General

_ Wayne R. Rodgers

“Assistant Attorney General

. State of Trxas

Pau. W.- Brown

- AttorneysGeneral

Donald Weckstein

a Ted BY? Clevenger

Assistant Attorneys .

General

_ State of Onno ©.

- Doveras M.” Heap

Attorney General

. Erie Miller-

Assistant Attorney Generak

State of Mrynesota °

Ropert W. Warren

. Attorney. General

“George F. Sieker

‘Theodore L. Priebe . * °

“KENT

‘Attorney General

Attorney General.

- Attorney for Archbishop

Catholie Dioceses

Assistant Attorneys

General °

State of WISCONSIN

Frizzey, 2

J. Kugene Balloun

Speeial Assistant

' Attorney Géneral

State of Kansas

Riowarp L. Gurry

Corporation Counsel

City of Cuitcaco .-

Davi J. Youn |

of the Six

in Ohio’

CuaRes E. GRIFFITH, im os

and Bishops’

' Director of Law

Robert E. Kendrick - ~ -

Deputy Metropolitan

Attorney

Metropolitan Gov ‘ernment

bf Nashville and David-

son County, TENNESSEE .

‘Ui “7

VERSE THE DISTRICT GOURT’S ORDER. .-

INDEX

D THE WRIT OF MANDAMUS TO RE-

FOR THE PRODUCTION OF DOCUMENTS..

THE ATTORNEY-CORPORATE — CLIENT’

PRIVILEGE DOES NOT EXTEND TO N AR-

RATIVE. STATEMENTS ‘OBTAINED’ BY |

CORPORATE COUNSEL FROM NON-MAN-

AGEMENT EMPLOYEFRS~ ABOUT THEIR

_ GRAND JU RY TESTIMON: ie -

—_-

% i eines ee + PAGE

JOPINIONS . BEIAW: 6102.02 2. csceeddinincenteniivos ae Ee

a La CE 8

“. QUESTIONS PRESENTED (ites 2

STATEMENT OF THE CASE wcccccdegenniomenne’ 2

SUMMARY OF ARGUMENT “ins DE a

PN a 0

Tp. SEVENTH CIRCUIT “IMPROPERLY

\. ‘THE DISTRICT COURT aout "PLY +e

HELD THAT THE CIRCUMSTANCES

DESCRIBED BY THE DEFENDANTS

DID NOT CREATE .AN. ATTORNEY-

‘ OLIENT PRIVILEGE ..............:.......... as

8. THE CONTROL GROUP TEST PROP.

ERLY DEFINES THE SCOPE - OF

THE ATTORNEY-CORPORATE ChIENT

PRIVILEGE | «00. -ccceuen i Na ot

(. EXTENSION df THE ATTORNEY:

CORPORATE © CLIENT PRIVILEGE

WOULD IRREVOCABLY CONCEAL

THE TRUTH’ a" SERVE NO. LEGITI-

| MATE INTEREST 45.......:00000 Ae a a

CONCLUSION 0000.0 Saad Tues 28 panies

ii Coy ae Be gs

Jape one, 1 eae Cree nee PAGE

i ‘AUTHORITIES CITED

Atlantic City: Electric Co. v. A. B. Chance ‘Co., 313

F.2d 431 (2d Cir.), stay denie d, 83.8.Ct. 964 (1963) .

Aflantic City Ele Gtricglo. Ve General Klectric Co}, ao af.

F.2d 844 (2d Cir. 1964) ies sdsenombgeroveots esegeasesosovevvegsovssees 6,12

Mlantic City. Electric Co. vy. General Elettrié Co., a

Civ. 4258 (SiD.N.¥. Dee. 4, 1962) 5 ia Tadaan er ereice 1T;.24

Bankers Life, & Casualty Co. v.° Holland, 346 ‘U. S.°°

379 (1953) / | icoliicajabiguabickipedaaats wince REY RIL Eos uigatenan ~10; 12, 13, 1 d

‘Bifferato v. States Marine Corp, Wn ES D. 44 (S.D. °

NA. 6h GRAN SOA tate ak ae wet ti Sikes 21.

“Chandler y. Judicial Counc “ul of the Tenth ¢ Yircuit, 38 ay

U.S. Law Week- onars (June ie etnies |

CBy of New, York v. United States, 390 US. 715

_ CIDGB) pescvecsncistesisatsesssctesensenlysbnnvaturaprndsporeesorocesnsecengeys hea 30°

City of Philadelphia v. Wt ‘estinghouse Electiic’ Corp., ° ~

210 F. Supp. 483 (E.D. ‘Pa. BIL) ecnaseosnsess aba 6, 10, 23

City of- Philadetphia v. Westinghouse Electric Corp., ed

32 .F.B.D. 350 °(E.D. Pa. 1962) cescsccsoosdecssssecsyeeatsieuice 2A

Cobbledick. v. United States, 309 U S. 323 (1940) BED - 13

-Emich Motors Corp._y. General leone

iD, GOB CRIN) | saith gia ceca nme Scones “ON

Esco C orp2y. United States, 340 B. 4d 1000 (9th Cir,

1965) a eorcvcccccces yoocecccces ; Bene PPTTTITITTT TTT TTT Tree Ltt Meee eneeeweeeeeneees 8 : I8

Ex parte Fahey, 332 U.S. 258 (1947) cesessssscsssseece 12

Ex parte Perit 318 U.S. 578 (1943) ° Pad eee OR 43

Garrison vy. General Motors Corp., 245 F. ties, d15.,

(S.D. Cal. 1963) * ....:,-rrssoiscreorescnassrnssbecsnssnne SiseoeeeD 1, 24, 28-

‘General Electric Co. v. Kirkpatrick, 312 F.2d 742 (3d

Cir. 1962), cert. denied, 372 U.S. 943 (1963) ............ 11

——?

O80, .; DODD) ~ ciosenasssorosasdescincadsntoshepyonsvasqncabottonstastsnroniataigisadic 1}

“Switzerland Cheese Assn BTC Market 385

US. 23 (1966) eressesesnreseennenseeinetssenzensesteencerneriee 13°

United States v. Duell, 172° US. 576 (1899) RE re,

United States y. Proctér & Gamble Co., 356 U S. (677 :

(EUG? Vien id saseongeonedbosssssnsestscsncssnséosesiesonsonssapesuncsnscsaneonsseges 26

' United States Alkali’ Export Ass'n vy. [ Tnited States.

A TER, SOR RUMMY ccc sacs ood LO He we 1B.

Will v. United Stats, 389 US. —— eee Ts

Ww ilson v, United Stute s} 221 U.S. .361 (1911) Se Nea 5

6 °

National Dairy Products Corp. v. United States 384

F.2d 457 (8th Cir. 1087)» cert. mean 390 °U S. 957,

(1BGB) - i. iservtiancone si seatonesssscheiakaatendes uiuopeheoDiceappensnsinecse AM aniies “119

Natta v.- Hogan, 392 F.24 686 (10th Cir. 1968) scowioshy Bly aD

. Parr v. United States, 381 US. G13, (1956) -esessseue 2B

- Pittsburgh Plate Glass Co. y. United States, 360 U.S %

395 (1959) . seteeeeneeeseeesecnsenesaneneesanne nse seme stevessseeeecs Webetens ogece ee ae

Fi2d 314 (7th Cir. 19635) Seale t er coekiaachtioaneatansitegels silieyeanes pA

Roche vy. Evaporated Milk Ass'n, 319 U.S. 21 (1S 3). 12,15.

Rucker’ y. Wabash Railroad | Co., 418. F.2d 146 (7th

a 4, yt ; . ot | en PAGR

Hale v. Henkel, 201 US, 48 (2206) iseininiiepanboetobantesnnay i 27

Harper & Row-Publishers, Ine. v, Decker, 394 US6 -.

Ok CO eto a aa Grid ees Wink AN

: Hickman \ , Taylor, 329 US. 495 (1947) aie 27. 98. -

Wotemiell, Inc. v. Piper Aireraft Corp., 1970 CCI <

Trade Cases {| 73,122 (AND. Pa. 1970). ..ceeccsotioeoee Le ot

_ Minnesota Mining & Mjg. Co. v. New Jersey Wood

Finishing Co., 381 .U.S. 311 (1969). siisseshsestraloontiiaees: oF

Radiant Burners, Inc.’ y. ‘Maikniou Gas Ass'n, 320%"

MISCELLANEOUS * ;

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8 Wigmore, Evidence, § 2285, § 2292. (3d ed. 1940) ..20, 23 °

’ Morgan, Foreword té Model Code of Evidence (A.LLI: -

SOE “netic ERNE ae Ris ins 36"

Preliafnary’ Draft, of: Proposed Rules of Evidence

for United Styid District Cojirts and Magistrates

(Mareh 1969) ¢ nonsivell-ds 10, 25 °°

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PAC. SUPREME: COURT OF THE UN ITED STATES , ’

OcTOBER ‘Tex, 1969.

‘Ne Bat Pe oe

- o 6

; HONORABLE’ BERNARD M. DECKER, Payee

; a, dae STATES DISTRICT JUDGE, et al.,

“a ae _ Petitioners,

ete Us. *, a

“HARPER & ROW. PUBL ISHERS, INC, et al., oes y

7 Respondents”

= ere ~ > —

On Wrtit of* Certiorar{ to the United States ea Se

~ Court of Appeals for the Seventh Circuit:

BRIEF = PETITIONERS - \.

% OPINIONS BELOW

Pa aed The opinion “of ‘the Court of Appeals, for: the Seventh pa

Circuit (Appendix, pp. 6la-67a). is reported at 423 F.2d 9” »

487. The. opinion of the District Court for the Northern -

District of Llinois (A pendix, pp. Ta-21a) is reported at

: 1969 CC i Trade: Cases {72,965. .

ea eS

The judgment ‘of the Court of Appeals was catered’ on a -

February 4, 1970, and amended by ordey of March 11, “° ~

hegsrg ‘fhe grand jury?

o- . ia, 4 ‘ we tae ; ; - Tee

o* ° . a vol . ° ‘ at

” 1970. TP the: petition: for a, writ. of certiorari sas fied: “On. =:

" Marcli 20, 1970. It was granted on cents The juris-

diction, of this C ourt rests upon 28°US. C. 1254(1).'

es alae ‘

ONS PRESENTED

despite the “final judgment”, rule and. 2 ye Xe § 1292(b),

to reverse a trial eDurt’ x‘ discove ry order fr the produe-

tion of .statements. made by grand jury witnesses to dey

ier a wrif of jnandamus can prope tly ba used,

fendants’ counse! describing: the ‘witnesses’ testimony -

> ’ a a.

“_e

‘, 2 Whether. the Court of Appeais?tor fis evs uth eit.

cuit erred in holding, that an. attorney -corporate client

privilege extends to Ye

- egrporate counsel from non- management employecs about

their ese jury testiniony’?

3f mu

it | STATEMENT OF THE CASE . ~~

This petition arises out of pre-trial discove Py procee d-

ings in multi-district antitrust litigation, consolidated:

-hefore Judge Bernard M- Dee ‘ker, United. States District

- Court for the Northern. District of Illinois. The represen-

‘tative plaintiffs. instituted class actions to. recover dam-

ages on behalf of public schools,: public libraries; and

‘parochial schools that, were victims: of a charged con-

spiracy by .defendant publisher rs’ and wholesalers to in- .

»: flate the prices of library « editions -of children’s books.”

'The Court of s\ppeals stayed the issuance of the writ

of mandamus’ until disposition of these proceedings by

larratives statements. solicited by:

we ;

orders of February 11, chit, and March 11, 1970 ( Appen-

dix, pp. 6¢a-71a).. ;

‘The plaintiffs in the icles? damage proceedings here

involved are thé States of. Illinois, Indiana, Texas, West

‘Virginia, Ohio, Wisconsin, Kansas and Minnesota, the

C ity of Chicago, the Archbishop: of Cincinnati, the Metro-

€

For. more. ‘than a, year and @ half, plaintiffs have —

Wig wie é ‘ wae : ; ee ee Be ee Jae sats

actively pursued’ discovery, including taking depositions ...-

oie : wee ‘ o £

one himdred witnesses. Faced -with a /

etfulness, recaleitrance, prevarication. and _

of ‘approximately;

pattern of for

_ evasiveness by the witnesses, plaintiffs moved. unger Rule

/ 34 for the ‘production of S0-cé alled “debriefing” - state-. . a

ments, 44" narrative accounts “taken from- employers

ahd ex-einployees of defendant companigs- relating. to.

their’ testimony before a grand jury investigating price-

fixing r conspiracies in the sale of ‘children’s s books to ee.

“he schools and libraries. : e

Certain defendants opposed such production, interpos:

ing thes attorney -tlient privilege and- work-product doc:

trine.’ The District Court ordered’ that. all. relevant dbeu- °

ments he produced, but prov ided : -

“that ‘if any defendant, objects to the. phainetiGn: ‘of

. any ‘document 2. on the grounds -of + attorney-client”

or work, product’ privilege, such, det ‘ondant .. . shall

~ , file said docune nt in a-sealed envelope, aacompinied:

by a-precise factual statement ‘setting forth the cir-.

cuypstances under which the document.was prepared.”

Order of August i. 1969 ( Appendix pe G6) .

iad « 9

“Y ‘por ‘cumsidhe ‘ration -of the affidavits, briefs 3 arguments ."

of counsel, as well as a rey iew of, deposition testimony

and an in ‘camera inspection of grand jury testimony, .

the District Court found a the attorneys “did not*rén-

‘

+(Cqntinued) ie er a ae °° ae

politan Government .of Nashville and Davidson . County.

and certain school districts. in Nassau and Suffolk Coun- ;

‘ties, Néw York. - * és e

Counsel “fér eens defendants dohuiieiily bartien

over “debriefiyre” statements’ taken from’ employees of:

their corporate ‘clients,

. {

ae ° oe Sean

So @#)\

corporations.” (Appendix, » pp. 1lda- 16aV - Moreover, ‘the

_ der ‘gains legal Avion ‘after’ ‘the: witessses completed ~

their grand jury testimony,” and that. “the debriefing eon-*

‘ suftations were*apparently conducted as- a favor. to the .

district ‘judge made’ the following. findings with respect to.

- deposition, testimony. of defense. witnésses Ayhich he re-

viewed. -* 1... ees " o

, (a) “Kach witness dsacitbaled a rolnneiasiae

lack of memory. concerning crifigal evidence ° in

_ controversy” and: “what: recollection they could | i

muster was often so vague as. to’ be of only

‘limited: value;” (Appendix, | pp. 9a, ee

(b) “Some. witnesses’ have been ‘déliberately \

99 66

evasive,” other deponents hay ‘forgotten. major —

ingidents involving the - allege price fixitg and |

cod ego receiving incrimmatitig corres-

pondence, » and the ,““deposition testimony some-

times conflicts with. décumentary. eviden@ which -.

the witnésses personally prepared, several ‘years

ago.” " (Appendix, pp. Ta-8a) - :

(c):: She recall ‘of each witness ‘was substan!

tially more .¢xtensive when he: appeared before _

the.grand jury, and “in each, instance, there exist

-material discrepancies: on, important factual ‘is-

- sues or significant facts that the witness failed to

: recollect. “4 (Appendix, p. ee:

( 6) .

In this context, the District Gort enumerated several

factors justifVing release of the. debriefing: statements to

ce aid Plaintiffs to establish critical, facts and casce rtain the

| truth: | |

: “The instant cutltrent eases are unusual, Sessa the

| .alleged price fixing conspiracy was -particularly active

six to ten vears ago. Although .the plaintiffs -have

volugninons documents available. for’ examination and.

have deposed a large number of witnesses, the inter-

-vening year's continue to obscure many crucial factual

quésfians. ‘Tlie Witnesses have’ ab sive: forgotten

_the details of their Operations : freque ntly, they. can- .

> not even remember major. in¢idents -in: which: devia-

; tions from ‘net? prices. were _ punished, Quite regularly,

Res Roca Witnesses confrorted with copies of their own’ Tetters

have. little or ‘tio reeall, Similarly, ‘deponents often ~

do not remember “receiving incriminating correspon-.

~ dence, nor do they offer reasonable explanations for — ee

apparent admissions: that their. prices were illegally

is inflated, If the conspiracy ‘existed, plaintiffs’ inability ‘+

to prepare fully-for trial results from the publishers’

Abe | Wholesalers’ concealinent.of the price fixing. As* ~,

public. bodies, the plaingff ‘schools and libraries are.

te charged with a responsibility to’ protect the taxpay- :

ers’ finances.” ~ (Appendix, p. 20a)" & *

aes ae ae

dm. the. record mae. by defendants, the Distriet, Court °

“concluded that three “debriefing” + statements were® privi!

logbd aml: would he’ returned to counsel, With respect to

; is thirty “te briefing” statements however, the District Court

re determined that (a). the: evidence failed to establish that a”

¢ confidential _attornéy -client . relationship existed, and- (b).

plaintiffs: had shown. “good caus?” : and “special: eecun-

stanecs”. for discovery which- outweighed - the -qualified

" protection. afforded work: product . even assuming: that

simple withess narratives could be called’ work product “~

* The District Vourt: held that the. attorney-corporate

éhent privilege attaches when ar esponsible member of the.

corporate management seckg@&\r receives legal advice | on me, }

_ behalf, of: the. corporatipn. this regard, the District ee

~. Court found that énly two witnesses “were ih a position te. °°

- influence theis company’s litigation ‘strategy -in these law-.

: esuits.: While’ other witnesses, syeh as sales executiv es cand:

“regional managers, might* have shaped. thé pricing poticies

= cone erning seine edifions; they’ did now’ participate “in

the corporate” problem about which legal advice was

sought—the company’s litigation response to-the price’

fixing cases, Accordingly, the debriefing documents [with

two exeeptions | are. not protected by a corporate attor-

ney-chent privilege.” ( Appendix, p. 17a)

The defendants sought to have the matter certified for

interlocutory appeal under 28 U.S.C, $ 1292(b), The Dis-

trict Court, following the holding in Atlantit,City Electric

4 Co. v. General Electric Co., 337 F.2d_844 (2d °Cir. 1964),

» denied certification on the. groynd that such a piecemeal

- appeal would not facilitate the final disposition ‘of the

case,"

Upon a petition by defendants, the Court -of Appeals

_ © granted in part and denied in part a writ of mandamus.

.* The Court of Appeals refused to disturb the Distriet

Court’s findings that no attornty-personal elient privilege

existed between the corporate counsel and the witnesses’

interviewed and that “good cause” had heen shown for

discovery of the Work product of defense attorneys. With

—. respect tothe issue of attorney-corporate client privilege,

the Court of Appeals acknowledged that the Distrigt

Contd had- ‘properly applied the law enunciated in pfevious

federal degisions: a

* +,

t ‘ “The district ‘iid substantially followed the ‘con-—

trol group’ test of the relationship hetween corporate

client and persons making the communication to the

‘ attorney which must exist if the communication ‘is

‘to be protected by the corporation’s attorney-client

privilege, This thst was formulated by Judge Kirk-

patrick im City of Philadelphia y. Westinghouse Elee-

tric Corp. (1.D. Pa., 1962),. 210° F.Supp. 483. A

similar test appears ig Rule 5-03(a)(3), Preliminary

- ‘Transcript of Proceedings, October 17, 1969; pp. 39-

40. 8

ad ‘Tre opinibn further! conceded : . a

£ 2 ° . ° . ¢ PA

, * ‘6 oC a

wr,

+h P *

ves Py ean Se oie gies ” its

‘Dratt of Proposed Rules of Evidence for the United

| Piates District Courts ant Magistrates, March, 1969.

Judge Kirkpatrick's control group test has been *

arr applied by othax_ courts, £.g., Natta v. H@gan (10th ©

Vir., 196

Motors.

(423 I°.2

4. 392 F.2d 686, 69%: Garrison v. General

‘orp. "45.D. Cab, 1963), 213 B.Supp: 515.”

at 49h)

“If the control group test be wholly a it has

* not. been -shown that’ » district judge erred in his

application of it.” (423 F.2d at 49 has

However, the’ Court of Appeals “concluded that “the

control groufy test ix not wholly adequate” ‘and that:

“‘diseovery order “debriefing. st

“because inaintenance of the attorney-client. privilege’

up to its proper-limits fas substantial importance to ~

the adminjstration of .juatice, and because an appeal

after dise losure“of the privileged communicationg ix

an inadequate, yemedy, the extraordinary remedy of

mandamus ix appropriate.” (423 F. ds at 49: 492)

Without further effort to justify the Nee of ‘masidamus,

Syventh Circuit ruled that the District Court’s “ordér

is ufawful” and that “a wit of mandamus will. badue

confelling respondent digtriet e to exe om” his

ements taken front indi-

viduals who were corporate employees attlie time of the

statement, and “to order the return of each of those de-. 2

briefing statements ‘to the defendants: which produced it.”

(423 F.2d at 491, g92)- _

The Seventh C@cuit di not disturb the District Court's

determination that na attorney-corporate client privilege

encompassed debriefing etatements which corporate coun-

sel gathered from former employees and - employees

of other companies. By order of Mareh 11, 1970, the

hal

’

. .

‘ : .

- ee De

es e e ois lan .

¢ ” .

. ’

of privilege by certain defendants for debriefing * state-

menjs which they obtained from employees of another

company that had. acted as their joint sales agent... (423

F.2d at 493)

“The issneé that remains for resolution by this Court is

whether the debriefing statements taken from non-control ,

group employees should be er ntitled to the protection: of:

an ) attorney- -vorporate ¢ _— ee: '

"SUMMARY OF ARGUMENT

l. 4 | > /

. Pint

The circumstances of this case provide no justification

for the issuance of a writ of mandamus by the Court of

Appeals for the Seventh Circuit. The Distriet Court not

/ “nly acted within its jurisdiction and authority, but prop-

“ applied the relevant federal decisions, in ordering

production of debriefing statements taken from grand

jury witnesses by corporate defenge counsel. Disagree-

ment by the Court of Appeals with the well-established

legal principles whieh the Distrreteourt’ followed affords

no‘basis to review, much less disturb, the, discov ery order °

entered by’ the district judge. The use of the extraordi-.

nary remedy of mandamus to reverse the ruling by the

Distriet Const violates thie admonitions of this Court and

the federal policy against “pier emeal” appeals embodied

in 28 U.S.C. 4 1292(b). .

oe he defendants did not ,cross-petition from that por.

tion 6f the Seventh Circuit's opinion which denied iman-

4 2

‘damus with respec. to the District. Court’s discovery rul-

ings. - Xv. " 7 , ‘

. » - i ‘

Court of Appeals adhered to this decision, denying a claim _

—i—

p i

The debricting statements’ ordared produced consisted.

_ of narrations by witnesses of what transpired before the

_ grand jury. On the basis of an analysis of the factual

- circumstances under which these debriefing sessions ‘were

conducted, the District Court concluded that the narrative

statements did not involve confidential communications

from a elient for the purpose of securing legal advice

from. ts professional legal advisor. The Dastrict Court

properly held that such an attorney corporate client privi- :

leged relationship could only exist if the. eommunication

were made to, an attorney by corporate personnel having

- wathority to control or substantially participate in a cor-

‘porate decision regarding action to be taken on advice of

° the aftorney.

Only the “control group” of the corporation may be

considered the corporate client in the claimed attorney-

“corporate client ‘privileged relationship. ‘By this means a

‘proper balance is struck between the need to segurt’ ae-

cess to the facts and the, interest allegedly furthered by

* the privilege. | extension of an aftorney-corporate client

privilege beyond the control group would conceal the truth

» and serve no’ legitimate purpose, as “demonstrated by the :

facts of this case. , a

. - 4

ew Se

ARGUMENT

I THE SEVENTH CIRCUIT IMPROPERLY. USED.

- ‘THE WRIT OF MANDAMUS TO REVERSE THE

‘DISTRICT COURT’S ORDER FOR THE PRODUC.

TION OF DOCUMENTS.

. r , 7 s . a

This Court has consistently ‘held that ‘mandamus will

not lie to review a diseovery order unless fhe aggrieved’,

party shows a clear abuse of diseretion and establishes

an indisputable right to such drastic relief. Bankers Life

& Casualty Co. vy. Holland, 346 U.S. 379, 384 (1953);

United ‘States vy. Duell, 172 US. 576, 582 (1899).

The reasoning of the Seventh Cirenit’s opinion | ‘itself

reveals the ‘lack of justification ‘for issuing a writ of

mandamus in this case. The District Court had unques:

tiongd power to direct production, of the “debriefing”

statements under Rule 34 of the Federal Rules of Civil |

Procedure. The challenged discovery order rested. upon

legal principles that had been developed: in an ungontra-

~dieted line of federal cases.’ The District: _Court-framied

itx ruling in-relianee inter alia, upon the decision itt City

‘of Philadelphia v. Westinghouse Electric Co., 210 F.Supp.

483, 485 (B.D. Pa. 1962) Kirkpatrick, J.), whieh articu-

lated the control group text with respect to whether

"statements taken from -emplovecs. were protected by - the

attorney-corporate cliew privilege, T lie defendants ag-

grieved by the discovery ruling | in ¢ ‘ity of Philadelphia v.

Westinghouse Electric Co. wnsue “ooxsfully petitioned dhe

Third Cireuit for a writ of mandamis. General Electric

——+---

“See"Tommentsto Rule 5-03, Preliminary Draft of Pro-

saa Rules of Evidence for United States District Courts

and Magistrates, pp. 80-81 (March 1969).

—_—

’

° , ° ° . . e

ny 5 . ie — i] Tt — . * @

‘ . p : * ° a 7 ‘

Co. v. Nirkpatrick, 312 °F.2d 742 (3d Cir.: 1962), cert.

denied, 372 US. 943 (1963). The reaffirmance of:the con-

a trol group test by many, décisions since. Judge Kirk-

> patrick’s 1962 opinion aahen mandamus even less appro- |

priate now than when the attorney-cotporate client priyi-

lege’ issue confronted the Third @ireuits

Indeed, the C ourt of Appeals conceded that the’ district —

judge properly applied the law embodied’ n° several

re » . recent decisions at the trial and appellate bead E.g.

oe, Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968) ; Garrison

="; Generar Motors Corp., 2%8 Fy Supp. 515. (S.D. Cha lif’.

~1965)."" Another panel of the Seyenth Cireuit had previ-

ously indicated acceptance of a standard similar to the |

control group test by its ruling’ in Rucker, vy. Wabash

Railroad Co., 418 F.2d 146, 154 (7th Cir, 1969) :

- “Neither party nay successfully agsert the attorney-,

} client privilege asx to the statements of- non- Party =

witnesses. Hickinan v. Taylor, 329 U.S. 495, 007,”

‘ This js true of defendant's sfatements given ‘by its

servants and agents*in’ this ease, None were of such

eel ~ rank as to-qualify-as representative of the corporate

chent.” . oe

The acknowledgment that the Distriet Court “substan-

_ tially followed” all relevant federal, law vitiates any basis

7 to review, much léss disturb, its production’ order le the

extraordinary remedy of. Mandamus, Spe

Dod

On numerous oecasions this Court has stressed that

“only exceptional eirenmstances amounting to a judicial

usurpation of oe justify invocation” of the CX-

’

--—-

* Moreover, precedent in addition to the cases cited liv’

_ the Seventh Ctreuit supports the District Court's ruling.

Fre City Electric rag *v. General Electric Co., 61 Civ.

4258 (S.D.N.Y., Dee. 4, 1962) (Ryan, Christensen, IJJ:). °

fe v0

. . .

. 7 o

° 5 *

f af - Ps Sa E tai 12—- .

é traordinary remedy of mandamus to dverturn. a distriet ’

court discovery ruling. Wall v. United States, 389 ES.

- 90, 95. (1967). The Will opinion further states:

“Courts faced with’ pe titions for the per -emptory writ

must be careful lest they. suffer themselves to be mis-

led by- labels * such ag’ ‘abuse of discretion’ and ‘want

of power’ into interlocutory review of non-appealable

_ orders on the mere ground that they may be errone-

- ous. ‘Certainly Congress knew that. some interlocu- .

tory orders might be erroneous sree itshiose to make

them nonreviewable.’ ” ‘(389 ~at 98,-n. 6)

. : _¢ i ee ; :

Si ues ‘policy against employment of mandamus

_. td Teview an dlegedly erroneous ruling within the juris-

diction of the district court applies with ¢qual force in

civil litigation as in criminal cases. Bankers Life & Casw

alty Co. v. Holland, 346 U.S. 379; 382-383 (1953) (a civil

antitrust case). ss \

The power to grant the peremptory writ of. mandamus’

must be “resefved for really extraordinary*@auses.” Ex

parte Fahey, 332 U.S. 258,260 (1947); Roche v. Evapo-

rated Milk Ass‘n, 319 US. 21, 26 (1943). A writ of man-

damus is a singularly inappropriate remedy with respect |

to discovery orders entrusted to-the discretion of the trial

judge in complex antitrust. cases where interlocutory

review may be sought for delay .or harassment. Cf.

« Atlantic City Electric Co, v. General Electric Co., 337 P2d

844 (2d Cir. 1964); Atlantic City Electric Co. v."A.-B.

Chance Co., 313 F.2d 431 (2d Cir.), stay denied, 83 S. ct.

964 (1963) (Harlan, J.).. Indeed, in the. course of these

consolidated pretrial proceedings, defendants have twice

petitioned for a writ of mandamus to challenge discovery

orders. See Harper & Row Publishers, Inc. v. Decker,

394 US. 944 ( 1969).

ore ae — 13%

_. For these*reasons, this Court has enfarced the Gongres-

sional prohtbition against “piccemeal”: appellate réview.

E.g., Switzerland Cheese Ass'n..v..E. Horne’s Market,

385 US. 23.924 (1966). The «pinion in Cobbledick vy.

United States: 309° U.S. 323, 325. (1940) ‘stresses the °

Yationiale underlying this poliey:

“Thereby is avoided the éhatiactivs to just elaims ;

~ :

that would come from permitting the | harassment

and cost’ of a succession of .separate appeals from -

. the various rulings to which a litigation may give

‘ rise, from its initiation to entry of judgment.” °--

~The defendants advanced no basis to invoke the ps eset

)

dinary remedy. of mandamus. The District Court afpplied

_well-@gablished and sound legal principles to the particu-

laf facts of this case in ruling.that the evidence failed

to establish. that. the debriefing stateMients were collected

in the course of a a client

relationship. :

The oftice of. mandamus. cannot oh used_ to gntrol the

_decisions of district courts, but only to confine lower courts

to their prescribed jurisdiction. Bankers’ Life & Casualty

Co. Vv. Holland, 346 U.S. 379, 383 (1953); Ex parte Peru,

318 U.S. 578, 583 (1943). The hounds of the diseretion-

ary powersto,issue such writs are set forth in’ Parr vy.

United States, 351 U.S. 513, 520-521 (1956) (Harlan, J. ):

ou b

court has exceeded or ebaaed to exercise its juris-

he power: -to issue them is diseretionary and it ix

sparingly exercised. . This is not a case where a

dictiof, sew Roche v. Evaporated Milk Assn., 319 U.S. -

21, 26, nor one where appellate review will be defeated

if aw writ does not issue, ef. Maryland, v. Soper, 270

US. 9, 29-30. Here the most that could be. claimed

is Ae the district courts have “erred in ruling on

stantial ‘im

Sard Dee ee ee ale ice

* - matters witMin theiy/ Iaetesierion The extraordinary

writs -do not reaclf_to such cases; they may not. be

) ‘uséd to thwart the. congress signal -— v against pice e-

/ meal, appeals. gas _ of

é - a: Hes ;

The Seventh Circuit's opinion explains. the use of

~ mandamus » on ‘the grounds -that . “maintenance of the

attorney-client’ privilege’ up to its prdéper limits has ‘sub-

yortanee to the administration of justice” and

“an appei

tion is inadequate remedy.” These assertions offer no

valid reason for interlocutory ‘review of the District

Couy 45 discovery’ biel by mandamus.

' The record contains no evidence to support the assump-

Jon that disclosure of these debrie fing statements, even

‘if erroneous, would cause any injury that could not be

remedied_in the normal course of appellate review. . The

_ factual affidavits filed by defendants make no claim that

" production of the debriefing. statements would reveal trial

“strategy, or that any of the debriefing statements contain

irrelevant, personal, or otherwise confidential material.

~ +. As Judge Decker specifically found: “The “debriefing

" statements: are essentially factaal summaries of the wit-

nesses’ testimony” before the grand. jury. (Appendix, p

14a) . The defendants will be “injured” by Medlawae a

. such debriefing statements only. if ‘their employees have |

been dishonest. or disingenuotis during Alepositions. The

.extraordinary writ ” mandamus was s not meant to remedy

this kind of -i injury.

The argument that an- alleged error cannot be rectified

after disclosure, of confidential inforniation applies to all

discovery orders, This case is indistinguishable from

_ any other inisteines in whith a lower court orders produc-

tion of material claimed to be privileged. -By using:man?

after disMosure ‘| of the privileged communica

¢ °

_I~ : =

ahead

_damus to protect against the alleged harm that thay result : %

from disclosure of the de briefing statements, the Seventh

| Cireuit’s, decision invites interlocutory. review of all rul-

* ings on assertions of an evide ‘ntiary “priv ilege. This is not

thesfunctjon that “mandamus “was intended to serve.

Nor does. it matter: that a litigant may experience the

hardship and inconvenience of a trial before the issue is

resolved in thie appellate court.. The writ of ‘mandamus

‘still,may not be. used as a substitute for dppe al. Bankers

Life & Casually. Ct, v. Holland, 346 U.S. 379, 383 (1953) ;

. United States Alkali Export Ass’n. \. United States, 825

U.S. 196, 202-203 (1945). rae :

‘The: fact that the Court of Appeals thought that the Dis-

trict Court's ruling involved. a question of “substantial im?

portance” provides: ‘ho’ ground to cireumyent the ordinary

‘process of judicial review. The appellate’ jurisdiction of

-. the federal courts nust be: exercised under statutory au-

thority conferred by Congress. Chandler y. Judicial Coun-

cil of the Tenth Circuit, 38 U.S. Law Week, 4413, 4424 -

(+970) (concurring opinion of | Harlan , J.). The discretion

to review interlocutory decisions indy be exercised only in

the circumstances defined’ by 28-U.S.C.° $1292. These con-

ditions. were not satisfied in the — proceeding.

a THE ATTORNEY- CORPORATE CLIENT PRIVI-

LEGE DOES NOT EXTEND TO NARRATIVE -

STATEMENTS OBTAINED — BY CORPORATE

COUNSEL FROM NON-MANAGEMENT EMPLOY- |

EES ABOUT THEIR GRAND JURY TESTIMONY |

_ The Distriet Court followed an. uricontradicted line of

federal authority in tiolding that an attorney-corporate

client privilege did not arise from the debriefing sessions

> ; . °

re oF as Pee

at. which’ corporate counsel interviewed grand jury wit- .

nesses.*. While the district judge recognized the immunity

afforded “by the ‘attorney-corporate elient privilege, he ee

ruled that: Caan as nee |

+ “(OD hty commimications from ‘certain employees NN

the Company’s attorneyecreate that relationship. Spe- _-. “J

cifically; a -responsible member of the cor oration’s |

“+ management or control group must. seek’ Tegal advice wa

about corporate affairs. J citation | Moreover, the cor- - | /

porate official must An a position fd influence the.

decision about: wh) egal counsél is- sought.” — Pisa fer csaee

pendix, ‘p.- 16a) 7 - Bree : |

: - 8 : a ‘3 i ‘

- The. Court of jppeals tor ‘the Seventh C irenit issued a”

writ of mandamus to reverse this ruling. It held that the \

District Gourt acted unlawfully in. finding that. te defen-

dants had offered insufficient support for theif claims of +.

attorney-¢orporate ‘client privilege under the applicable

legal. principles. es reas Fa gee es ae

An evaluation of the’ appropriate limits o be placed on e

the attorney-corporate client privilege 43 the. correct.” o-

ness of the- deeisions indgi-review,_reqiires —nitrat-dis= nee

ets Pa of the type .of smaterial which’ defendants have , °° es

sought ‘to ¢ldak with the’ privilege and the circumstances 7

under which these documents were prepared, i ee oe a

es x

“The défendants below claimed the attorney-corpoxate

aitwat privilege for’ statements takeh from witnesses with-, *

out regard to whether they were employed by. the*gom- ont

pany that counsel represented. In this proceeding,, the -

‘defendants ass¢ert an attorney-corporate client privilege

‘only with respeét to employees, : re ae eR

e ” . e '

pee oes

x: avs THE | DISTRICT. COURT CORRECTLY HELD

_«:, THAT THE CIRCUMSTANCES DESCRIBED

. .. BY. DEFENDANTS P#D NOT; ORFATE AN

ATTORNEY-CLIENT PRIVILEGE.

The ‘District <Court’s discovery order = upon a

. finding that the necessary ‘factual indicia of an attorney-

: seaport were lacking with respect to the narra-

tive statements given to corporate counsel by/ the gratid

jury. witnesses On the basis of the “precise factual state-_

ment[%]” submitted by defense counsel, as well as deposi-

. tion testimony, the «district, “judge determined. that these

- $]

ple witness narratives reflected no confidential com-

i unications made in ‘the course of an attorney -client

‘nesses] ‘as -to what transpired in the course of their re-:

elationship.”

During the investigation conducted by the federal grand

jury: into price-fixing in the sale of childrén’s books to

- public schools and _ libraries, atternpys for the defendant

companies interviewed the -vetrious - witnesses following

their appeatance before the grand jury. ‘These interviews

were conducted foi the avowed purpose of learning from

>the’ witness “the substance of his grand jury testimony.” ”

“The memoranda regord the recollection: of — [the wit-

°In their ‘affidavits and factual statements, defendants

often claimed {het the witnesses ingerviewed were per-

sonal as well as corporate clhents. The defendants spe-

_ cifically asserted’ that many of the debriefing statements —

involved in this proceeding were protected by an attorney- .

personal client privilege, i.e, the ‘statements “taken from

witnesses - Patella, ° Guerney, Scioscia, Heidelberger,

. Stokes, Davidson, Callaway, "Hood; Thompson, Moorman,

'. sAndresen, and Galden Press “A”, "These claims of attor-

ney-personal client preee were rejected and have: new ¢

{

. been abandoned. ie ‘

= Factual statement with respect. to wiiness Hoocker

ee dtear p. 998). poe 2h , ii

. ‘~@ Py . |

athe grand jury, , Fy

v e

a? fe 18

spective ‘interrogations before the grand jury.”"' The

defense éounsel sought to discover what areas of inquiry

- were. being. pursued, by the f@leral investigators and

what other witnésses had appeared or were scheduled to

appear.” By having the witness recount the questions

~ asked before the grand jury, the attorneys were able to

piece together the evidenee which: had already been as-

sembled from other sources and presented to the grand

jury, In addition, the defendants learned whether other

companies had given the grand jury ineriminating ‘cor-

respondence which defendants had not retained in their

corporate files or, which they hadSvonsfrued ax not re- | r

quested bys the federal subpoena. Defense counsel at-’

tempted to find out not only what each witness informed.

the grand jury, but al<d matters connected with the price- *.

fixing conspiracy which the witnesses may not have told

The circumstances of the “various debriefing interviews

differed slightly. Some Witenes were interrogated by.

several attorneys, representing their current: and past

employers. 4 ‘ounsel sometimes | “jointly copducted these” q

interviews..“ One attorney interviewed Witnesses from ©

four differs nt companies that his firm’ represented, as

well as witnesses from other companies,’ The reeollee- u

Rapa Factual — With respect to witnesses Mitehe i

and Andrus (Appene IX, pp. a). :

* Factual statement? with respect to Golden Press wit-

nesses “B™ (Andresén) dnd, “10 (Roland) (Appendix,

pp. S0a-Sda). PL OF,

* Factual statements ‘with respect to Witter xen David.

von and Patella (Grosset & Dunlap), Guerney and Sci-

oscia (Harper & Row), prema. ribmer’ 7 anil WWeidel-

berger (KB. 1 Dutton) fAppeikfix, pp. Tla-80a). The

same attorney _itlso interviewed Mathiesen (KE. M. Hae).

See Seventh Civeuit’s arder of March 1, 1970 ( Appendia,

vp. 69a- Male ° ? ae .

4% *e i

— —_

¥ =

‘ ,

nod .

. i ;

tions of withesses were recorded in several w

counsel or their soeretaries.

The debriefing sfatements were taken to, enable fhe

— defendant companies to chart the direetion of the federal |

investigation and fo instruct othier withesses who might

be -ealled to testify, .By the exchange of information

gathered from debriefing interviews, dBense ‘counsel —

could advise witnesses of the matters whieh liad come’ to

light and the «hoalx to avoid.” Several years following

the conclusion of the grand jury mgoceedings, some defen-

- dants usd the debriefing statements to prepare ‘their wi

nexses for depositions by the treble-damage plaintiffs.”

The general criteria for existence of the attorney-client

privilege lave heen pliraxed-in the following form:

“Where legal advice of any kind jx sought from a ‘

professional legal adviser in hix capacity ax such, the

> communications relating to. that puypose, made’ in

confidence by the client, are at his instance perma

Y Vactial statement with respect to wituess Callaway

(Appendix, pp. ‘S7a-89a).

son and Andresen (Appendix. p. Vay. and Golden: Pres.

' «RB (Appendix, |’. Sin).

“None of, the affidavits or statements submitted by

counsel assert’ that the information contained in “the

briefing’ statements, or the substance of such statement =

was kept within the corporation.

* Pactuhl statements with respect to Wit negsex Walker .

and Dyckman (Appendix, pp. 92a, 4a).

Under generally accepted pSuciples, any material nped

“to refresh the recollection of a witha. even if axsertodly

privileged, must be nade available for axe in cross-exam-

indtion, National Dairy Products Corp. vy. United States,

a4 Fd 457. (Sth Cir, 1967). cert. denied, 390 US. V7: -

(1968). °° re

ays—by the _

’ witnesses themeulves.’¢/by dietaphone machines,” and. by

nently protected from disclosure by himself or by the -

legal adviser, except the protection be, waived.” 8

Wigmore, sicuasaaad- $2282 (3d ed. 1940) —

Applying the above prisie iples, the District Court de-

termined that the debriefing statements, with two excep-

tions, were not communications protected by the attorney-

client privilege, Ti get that the grand jury witnesses’

neither sought tor received legal advice relating | to cor-

porate affairs during their debriefing interviews. The

record fully supports this determination. The defendants

submitted no proof showing that a confidential attorney- .

client relationship existed whén the debriefing interviews

were conducted. None of the affidavits stated that the

witness interviewed had sought or received legal, advice

following hix grand jury appearance. None of the affi-,

davits stated or-even indicated that the witness expected

, e \ = . . — ° *

* or requested that his disclosure be kept confidential.”

“It is likely that defendants purposely ‘confined their

affidavits to conclusory assertions. For when counsel ven-

tured to be more specific, they’ were flatly contradicted by

deposition testimony from available witnesses. For in-

stance, counsel. for Harper & Row axserted in memo-

randum form that the debriefing statements were “confi-

dential communications’, and that “Messrs. Davidson .

and Rose sought the advice .of that firm and were its

clients.” But Davidson testified that he was interviewed

about hix grand jury testimony at the request of counsel

for his corporate ‘employer an d that it made no difference

to him whether-his statement was kept - confidential.

(Davidson Deposition Tr. 13, 17) The testimony of Rose

further refutes these false assertions:

‘ “Q. After you testified before the Grand Jury, did

you tell anyone about what you told the ‘Grand Jury!

_* Yes... . 1 simply ealled Bill Ashworth | sales

iger of Harper &

, po there, and he asked

- jection to speaking wi

(Rose Deposition Tr.

ae a

¢ if I-would have any ob-

“their lawyer. 1 said ‘No.’”

;

] to tell him | had been +

The debriefing statements simply regorded interviews

by corporate counsel with assorted salesmen and sales

managers in order to summarize the recollections of these

witnesses ax to their grand jury testimony.’” The testi-

mony of Leslie Rowe exemplifiestie nature. of the de-

briefing interviews, agd the-fact that the witnesses were

not involved in the litigation for which the narrative

statements were collected. Rowe related that he was ques-

- “tioned about his grand jury testimony on separdte occa-

xions ‘by counsel for G. P. Putnam's Sops “(his former’

employer), and Thomas Y. Crowell Co. (his current em-

plover). He attended thesé interviews at the request of

the corporate attorneys, not to seenre legal advice or dis-

cuss the position his company should - take in the litiga-

tion. Rowe did pot request or understand that his narra- .

tive would be kept- conifidential. (Rowe Deposition. Tr.

hance

” Based on the. factual record made by the defense coun-

xef and witnesses, the District Court rejected afl but two

claitns of attorney-corporate client privilege, holding that .

a attorney-corporate client privilege only attaches when

a respohsible or appropriate member of the corporate

management seeks or receives legal advice-‘on behalf of —

the corporation. This has been described as tlie “control:

group test.”

- .

a o

In these enleavors, the attorneys acted as little-more’

than scriveners: Cf. Bifferato v. States Marine Corp... \1

F.R.D. 44, 16-47 (S.D.N.Y, 1951) (Weinfgld, J. )

‘8B THE CONTROL GROUP TEST PROPERLY

¢ DEFINES THE SCOPE OF THE ATTORNEY.

CORPORATE CLIENT PRIVILEGE —

The federal courts haye given limited .application to

the attorney-corporate client privflege,” heeding the ad-

monition quoted in rere Burners, Ine. v. American Gas

Ass'n, 320 F.2d 314, 323 (7th Cir. 1963) :

“Nevertheless, the [attorney y-corporate client] privi-

lege remains an exception to. the general duty to

disclose. Its benefits are all indirect. and-speculative ;.

its obstruction is ‘plain and concrete... «It is worth

- preserving for the sake of a general policy, but it is

nonetheless an obstacle to the investigation of the

truth. It ought to-be strictly confined within the

narrowest possible limits. consistent with the logic of -

its principle.” : 3

It is clear that the granting of a privilege to conceal ’

relAant information from scrutiny of a judicial proceed- °

ing carries a heavy burden of justification. The person

or group asserting the privilege must éstablish the right

of concealment. Ax stated: by Professor Wigmore, four

fundamental conditions are recognized as necessary. to.

the establishment of a pr ivilege against, the disclosure of

communications :”

“(1) The communications must originate in a con/fi-

dence that they will not be disclosed. —

"(2) This element of confide ntidlity must be essen-

tial to the full and satisfactory, maintenance

of the relation betweén’ the parties.

(3) The relation must be one which in the opin-

ion of the community ought to be seqlulonsly -

fostered; and

” This Court has hever detérmined that an attorney-

corporate client privilege’ actually exists.

_ should be considered as the “client.” Since, privilege ix

invoked solely on behalf of the corporate elient, its pro- °

tection has been held to extend only to confidential com-

~ personnel: having “the” authority to control, or substan- -

—

-~*

“(4) The mjury that would inure to the relation by

the disclosure of the communications must be

greater than the benefit thereby gained for the

correct disposal of litigation.”

8 Wigmore, Evidence § 2285 (3d ed., 1940)

The debriefing’ statements taken by corporate counsel |

from non- -manage ment .cmployees: do not” satisfy these

pr erequisifes.

The control group test whi¢h the District ‘Court applied =

has been dévelopéd by the federal decisions to delineate

what communications qualify for the attorney-client privi-

lege in*the corporate context or, in other words, who

munications between the corporate attorney and corporate

- tially. ‘participate in, a decision regarding action to be

taken on the advice of a lawyer, or [an individual who] is

,an authorized: member of a group that has sueh power.”

Natta v. Hogan, 392 F.2d (86, 692 (10th Cir. 1968).

_ The decision in City of Philadelphia v: Westinghouse *

Electric Corp.,-210 EF. Supp. 483,.485 (E.D. Pa. 1962,

- Kirkpatrick, J.), sets forth- the rationale for the control

group test:- ;

“Keeping jn mind that the question is, Is. it the

corporation which is seeking. the lawyer's ‘advice when

the asserted privileged gommunication is made?, the

most satisfactory soltition, I think, is that if the em-

ployee making, the communication, of whatever rank hy

may be, is in a position to control or even to take a

substantial part in a decision about any action which

' the’ corporation may take upon the advice of the

ittorney, or if he is an authorized member of a body

Lae

aos We ad.

or group which has that authority, then, in effect, he

is (or personifies) the corporation when -he makes

his disclosure to the Jawyer and the privilege would

apply. In all ‘other cases the employee would be

. * merely giving information te the lawyer to enable

the-latter to advise those in the corporation having:

the authority to act or refrain from ‘acting on the -

adviée.” #

This doctrine derives from the decision’ in Hickman v.

Taylor, 329-U.S. 495, 508 (1947), that “the protective

cloak of |the attorney-client | privilege does not extend

to information which an attorney secures from a witness |

while acting for his client in anticipation of litigation.” *°

The control group test has been followed by a number

of other federal courts. E.g., Honeywell, Inc. y. Piper Air--

craft Corp., 970 CCI Trade Cases § 73,122 (M.D. Pa.

1970); Garrison vy. General Motors Corp., 213) FF. Supp.

515 (S.D. Cale 1963); Atlantic City Electric Co. vy. General —

Eleetric Co., O1 Civ. 42 58 (S.D.N-Y.. December 4, 1962)

(attorney orpokateclient privilege held not to’ protect “a

stondgraphic ‘ally reported statement which had-heen given

* Subsequent to his enunciation of the apatrel dries

test, Judge Kirkpatrick ruled that. production of a de*.

briefing statement was “not ‘forbidden by the attorngy-

client privilege.” City of Philadelphia vy. Westinghouse

* Electric Corp., 32. F-.R. D>. 390, 351 (B.D... Pa. 1962), Judge

Kirkpatrick had already rejected a claim of privilege by .

defendant “with respect tothe -information acquired by

‘tx general counsel, Mr. Wood, in the course of his in-.

vestigation of facts relevant to the impending indietment

of the company.” City of Philadelphia yv. Westinghouse

Electrié Corp., (Memorandum Opinion dated July 19,

1962). Sauk

The attorney in Hickman vy. Taylor reavestutod fhe

owner of the tugboat invelved in a fatal crash, and the

witnesses interviewed were crew members . who had sur- -

vived. .

leas

by the witness to counsel. for his ‘employ er, -C. H: Wheeler

Company, in the presence of the president of the company, —.

concerning the testimony theretofore given by the witness

to the Grand Jury”).”

—

The District Court applied the contrel group test in

determining what persons were encompassed within the

definition of “client” for purposes of the ‘privilege. The

debriefing statements taken from James Milne, a’ sales.’

manager, and George Bonsall, an executive vicé-president,

were held protected by the privilege and returned to the

corporate defendants. These were the only two instances

in which the defendants claimed that the employee inter-

viewed had any connection with the formulation of cor-”

porate policy in response to the government investiga- .

a and potential lawsuits. am

The control -group test strikes an: appropriate balance

between the interests sought to be protected by the attor-\

ney-vorporate, client privilege and the legitimate need’ of

- litigants to secure access to the facts. The circumstances

under which the debriefing statemegts were collected pre-

.cludes any. assertion that the attorney-corporate client —

.. privilege is necessary to- encourage bas disclosure of

** Acknowledging this “trend” of cases, the Preliminary

Draft of Proposed Rules of Evidence for the United

States District Courts and Magistrates embodies the con-

trol group test, setting forth the general rule of privilege

as follows:

“A client -has a privilege to refuse to disclose and

_ to prevent any other person from disclosing confiden-

tial communi¢atons (1). between himself or his repre-

sentatives and his lawyer or his law yer’s representa-

tives.” (Rule 5-03(b)) ie

It defines a “representative of the client” as: .,

“One having authority to obtain professional legal

_ services, or to act on advice rendered pursuant. there-

to, on behal® of the client.” (Rule 5-03(a)(3)).

4 of ?

q ee: ee

* - )

®.2 *

facts by the witness to the’ corporate attorney . Phe intey-*"

‘The employees Simpty- recounted their experiences erore

views were not conducted ina, confidential amosphere.

vthe grand .jury at the request of the corporate attorneys,’

just as they would report to any corporate officer, TRe. :

statetients were not: elicited by an expectation of a con-

‘fidertial relationship between the employees and the attor-

neys representing their companies, In. fact, defendants

admitted that- debriefing statements taken,-:from certain

' witnesses were circulated or-made available. to officers of

their respective «¢ companies." Moreover, the defendants

“have ass®rted that the attorney-corporate client privilege

hy circulation of the debriefing statements among other

. hoa sof a

eouipahiox whe HHH Lieecerttte—etettetetietetttrts tt named CU-

conspirators in subsequent litigation.

The holding that ne privilege attachés to reports from

-non-management personiiel. to corporate attorneys would.

have nw adverse effect upon the ability of corporations to

secure necessary information from these. employees.

The ‘onl conceivable barrier gto the witness -being

candid might arise from ‘a fear of discipline if the em-

ployee had violated the law unbeknownst to the. corpora-

tion or incriminated the corporation (and others) by his

adinissions to the grand jury. Cf. United States v. Procter

€ Gamble Co., 356 U.S. 677, 681-82 (1958); Pittsburgh

Plate Glass ¢'o, vy. United States, 360 U.S. 395, 400-(1959):

But the attorney y-corporate client pr ivilege offers no pro-

tection against such contingencies, since the’ privilege

helongs to. th’ Liles ousiaeecm: not the individual,”

(Appendix, p. 89a)’ and Walker ( Appendix, p. 92a)

* Eig., factual statement of Golden Press (Appendix,

pp. ere aes 3 WSS Sune, ts \

* Factual statements with respect to Witnesses Callawé ay

~ Nor may it be seriously contended that interviews with

-employees would not. be held jf ‘later disclosure of -state-

ments to damage plaintiffs were a possibility. Every time. .

‘a corporation amasses information about ‘itself—sales

figures, cost Studies, travel récords,. executive diaries—it

creates discoverable mateyial that may be valuable in

price-fixing cases or other litigation against the com-

pany.””. But corpoyations do not cease keeping records, or |

collee ting facts, simply because they may, have evidentiary

significanée in lawsuits.’ |

In this regard, it mast! be noted that he: records of

interviews conducted, by corporate. attorneys in prepara-

tion for litigation are protected to the extent that such —

documents embody . the work product of the ittorneys:.

‘Hickman vy. Taylor, 329° US. 495 (1947). Discovery of .

monk 9° mt he secured “except upon a showing &

of hase ocd: d need” or special cireumstances. This

. provides adequate, but flexible, protection for the. memo:

randa of attorneys. . es eat

I this case, the corporate attorneys intervie wed cer-

tain witnesses” to ascertain the. nature of the grand jury

‘investigation so that they could advise their companies,

construct their defense, and ‘prepare ° exculpatory testi-

“mony: ‘and documents. But the need to gather. information

‘from employees for the ,purpose of giving legal advice to

the corporate. client does not itself establish’ an attorney-.

corporate client relationship. between the attorney and’

the employee .intervjewed, no more’ than it would create.

esuch’a relationship ‘between. the ‘attorney sand any other

a corporation has. no privilege against selfsinerimina- -

tiom. Hale v. Henkel, 201 U.S. 43, 73 (1906); Wilson

sans ¢ State e, 221, US. 361 . (9th). : eae: .,

witness who may possess facts éssential to the Sammie

tion of a case. pase at ge i v , ;

The. Court-of Appeals made the ealgheiins of a _ privilege

turn upon’ whether the cinployee narrated: his: recollections.

"= to the corporate. ‘attorney “at the direction of his supe-_

riors in the corporation.” .423° F.2d at 491.” But in this

case, ‘the grand jury witnesses were not agents of the.

company for the purpose of seeking legal advice. The

fact’ that the corporation. thay have directed these non-

management employees to report certain facts’ to a cor-

porate attorney does: not vest those employees with. the

' ‘ at a : :

-* necessary duthority to create a confidential attorney-client.

relationship. See Garrison vy, General Motors Corp., 213

IM, Supp. 515,518 (8.1. Cal, 1963). ¥

The Seventh—Cirenit'’s opinion sili different rules

for reports from employees: who are bystander w ttnesses .

and communications from “employees relating to the ‘per-

formance of. his employment duties. “But this distinction’

between “witnesses” and “participants”. directly conflicts

with the holding in //ickman v. Taylor, 329 U.S. 495, 508

(1947). Moreover, it creates.a wholly unworkable means

fo determine the proper limits of the attorney-client .

privilege. The distinction between the ° employee as par-

ticipant and witness is: particularly inappropriate ‘in anti-.

trust-conspiracy_cases, where a-mere-wink-or nod may—be—

sufficient evidence of intent to join in a collusive scheme.”

The’ affidavits and descriptions filed with the District.

Court by defense counsel, reveal that the debriefing inter-

é et See,” €.G-).Esco' Corp. Vv; ‘United States, 340 F. 2d 1000,

i 1007. (9th Cir. 1965). If the corporate sales manager, for

‘instance, . tells the company’s lawyer that’ he told, the

grand jury (or avoided telling the grand jury) that he

attended a.meeting where competitors agreed on prices,

the sales manager must properly abe characteriaéd as a

witness. . :

ey, See a | oe

views were mainly intended to learn what transpired be-.

. fore the grand jury. In this situation, fhe employee was

merely a witness to the questions and akswers: that Oc.

of testimony

to the grand Jury constituted{ no tart of the employee’s

duties. to .the’ Corporation. . ‘Actordingly, the, debgiefing”

statements would not be entitled to protection. even under’

the Seventh Circuit’s view. :

curred in the grand jury room. The, givin

‘In addition, a number’ of erand jury® witviesses were *

« employed by several different companies during the pric e-,

fixing conspiracy. «The attorney-client privilege certainly

should not protect what these witnesseset6ld the lawyer

for their current employer about, ffiniony a aati

their sallow se me at’ other ‘cyshpanies. oi oe

Ot ry

The debriefing statements involved in this case: concern

the recollection, ol witnesses with respect to testimony :

concerning: instances’ of reprisals by publishers against

price-cutting wholesalers, reports about violations of the

net-price system, exchange of information. among co-

conspirators,’ and -the) maintenance ‘of the price-fixing

* scheme by other companies involved (ws well as their own

employers). The-Seventh Circuit’s opinion provides no_

rationale for affording protection to such materials.

&. EXTENSION OF THE ATTORNEY. CORPO.

a RATE CLIENT PRIVILEGE: WOULD IRRE.-

‘ - “VOCABLY CONCEAL THE TRUIH AND

_BERVE NO LEGITIMATE. INTEREST .

: The attorney corporate client privilege constitutes an.

imposing barrier to the ‘ascertainment of facts through

- discovery procedures, Securing facts through corporate

witnesses is wa difficult’ task in’ itself especially where

“ — #0 —

much time elapses between the event and the examination —

of witnesses at depositions or trial. Established programs

within the corporation for the periodic destruction of

papers clifpinate ong source of evidence. Without the’ -

possibility of being iinpeached by written correspondence,

memorand or other documents, witnesses cap safely re-

treat behind-a lack of recollection. , .

These problems: are heightened in antitrust damage ac-

tions, Due to the inevitable time lapse between a price-fix,.

ing conspiracy’and the damage trial, access to earlier-re-

corded recollection, such as’ the debriefing statentents in

-this case, is crucial to effective discovery. Because of the

self-concealing naturé of the conspiratorial acts, the

vietimsx generally do not@arn ‘of them ‘until thy fedeyal # ,

government, equipped with superior means of investiga:

tion, has brought charges. For both legal and practical

reasong, private damage actions usually do not progress

to the diseeyery stage until the government action is:

completed or settled. Thus, the discovery _aspect of pri-

- vate damage litigation may sot occur -antil three to five

' years ‘after the conspiracy has been unmasked, and even

more years ‘after, the erucial events and_ conversations

that were they inception of the illegal scheme. If, as

_~» frequently 6ecurs, the federal action, is settled b@ a nolo

contendere plea or consent judgment, damage \ aintiffe

‘must, themselves ‘prove the.violdtion,” In that effort, the

‘great obstacle is the failing memories of conapirators— |

real or iaepee:

° +

He '

anf i

“This case is soak | a situation: Moreover, the states,

" cities, and public agencies involved in these damage

actions were denice? intervention*in the federal proceed.

ings which led to the entry of a, consent deerce,. See City

of New York y. United Slates, 390 U.S. 715 (1968).

‘

—<*.

. P er * ; : ao

oeed, a

Witenes ‘

It has been - frequently stressed by this Court “that

private antitrust litigation is one of the surest’ weapons

for effective enforcement of the antitrust laws,” Minnesota .

Mining & Mfg. Co. ¥: New Jersey Wood Finishing Co,

381 U.S. 311,318 (1965); Emich Motors Corp. v. General

Motors Corp., 340. U.S, 558, 568 (1951). Withouf-materials

to refresh recollections or reveal that .stories have altered

over time, tecovery for. ax a result of illegal

price-fixing may be frustrated’ by well-reheatsed, false

and evasive’ testimony. See

The District Court's ‘findings of - particularized need

for release of the debriefing statements in this case ex-

press strong policy reasons against extension off ‘the

attoriiey-corporate client privilege. Speaking of the depo-

sition testimony given by defense witnesses, the Disfrict

Court concluded that “each witness demonstrated a re-

markable lack of memory concerning crucial evidence in

controversy,” tha’ “what recollection they could mustes

was often so vague as to be of only limited value,” and

recaleitrant. - Comparmg the deposition’ testimony with

grand jury testimony given more than three years earlier,

the District Coutt found that the recall of each witness

was substantially more extensive when he appeared be-

fore the grand jury, and “in each instan&, there. exist

material discrepancies - on important factual issues on

significant faéts that the witness failed to recollect.” ”

“The District Court made similar findings of fact with

reypect to the discrepancies, between deposition and gran¢

jury .testimony of additional witnestes by order anc,

memorandum opinion entered on January 16, 1970: “Par-

ticularly prevalent in the deposition, testimony ix the

evasiveness of thesg witnesses when asked questions cen-

tral to the issues in this litigation, ¢.9., the alleged’ price

‘ z Maen. | pees .

| ; el 7 °% ; =

" Since the debriefing interviews were conducted more

than: three years prior to the depositions in these treble- —

damage actions, and concern aspects of the illegal price-

fixing conspiracy charged in the complaints, the debriefing

statements are invaluable to plaintiffs ax clues to whether

a deponent has been mistaken, evasive or dishonest. The

District Court concluded that’ the debriefing statements

should be released to plaintiffs for the putpose of refresh-

ing ‘the recollections of witneskex and impeaching deposi-

‘tion testimony. sa ;

Moreover, the debrieting -statements disclose relevant

aspects’ of the price-fixing conspiracy not fully probed by

‘4 the grand jury and kad to other relevant evidence. As

» the-Prstriet Court noted, “a witness may have. specified

that there were no questions concerning various enume-

rated incidents of dubious legality,” Appendix,—_p.—tba,—

om 42) Ome example in this, respect is a debriefing state-

ment taken from Si Goldman, an ex-employee of defen-

dant Maémillan Company, whieh reads; 9 7”

- “Mr. Goldman related that the Grand Jury had

been especially interested in sales manager meetings

lield nonthly in New York beginning roughly ‘in 1961-

and continuing until early 1965. The Grand Jury

seemed to suspect that these meetings were the ocen-

xion for price fixing among publishers ‘and: concerted

agtion against «liseounters. Mr. Goldinan wax able. to

testify only as to hix ‘inability to recall any diseus-

sion on his, part of net prices at these meetings.

although he conceded to ux that othere had discussed

: P _%

* (Continued) : ™

‘fixing and conspiratorial activities. Thix evasivencss ix

all ithe more notable when contrasted with the gvitnesses"

demonstrated ability to recall events and faelx equally

remote in time, but ‘with only a peripheral relationship

to the allegations of the complaint.” (p. 5)

— 33—

net prices in general although not comparatively be-

tween publishers.” ”

A reference in another debfi@fing statement taken from

Goldman throws additional light upon the discussions

which oceurred among publishers at the “sales managers

meetings” with respect to enforcement of the net-price ‘

syoyem :

“Goldman was asked from ‘whom he received in-

formation concerning Sapsis’ |a book wholesaler]

price cutting. Goldman testified that he heard about _

this from Carl Leibel Tanother book wholesaler}. .°. .

“Goldmam said to Leibel that he would look intd’

the matter when he saw Sapsis. He told us that -he

did this to please the customer. (Goldman really ~

‘wanted to warn Sapsis about comments he had. heard

by people other than Macmillan people at a salex

manager luncheon. These non-Maemillan people aia |

that they would cut Sapsis off.)”” .

In addition, other debriefing statements obtained by

plaintiffs show that witnesses concéaled valuable informa-

tion in both grand. jury and deposition testimony, For

example, the debriefing statements taken from Clarence

- N. Roland, who was sales representative or manager at’

difffrent times for thee defendants—Childrens Press,

Golden Press and Follett—sharply contradict his deposi-

tion testimony and reveal that the witness had deliberately

” Debriefing statement taken from Si Goldman by attor-

for Macmillan, July 7, 1966 (Goldman Deposition

Ex ibit’9).

” Debriefing statement then ‘from Si Goldman by attor-

neys for Macmillan, November 30, 1966 (Goldman Depo-

sition Exhibit 1Q).

he «

— 34 _ Me

withheld information from the grand jury itself.” The

following statement recorded by an attorney for Childrens

‘Press ps illustrative: _ tae

“Roland told the debriefers but not the grand jury

_ that aceasionally he did purposely ‘lose’ orders from

discounting jobbers.” (p. 3)

The expression “purposely ‘lose’ orders from dixcounting

jobbers” described a means “used by publisher defendants

to coerce jobbers into maintaming the fixed net pr ices as

charged in the ‘complaints. °

The tape recorded debriefing statement taken at the

same interview by Golden Press exposes ‘Roland’ 8 evasive

testimony before the grand jury concerning enforcement

of the net-price system upon wholesalers. This may be

_ seen from Roland's deser iption of thie questions posed and

Hix FespoORnses ;

“Do you ee ‘of any Instances where you jiave done *

/ so flost orders of discounting wholesalers]? And 4

paused and in my.pause he took another question up —

xa I didn't answer if because [ was about to answer.

Yes.” ; “s :

* * *

“Do you know of any imtances where W ally Black

actually threatened to cut off arivone? About the time

[ was about to answer, the Court steno stopped for

‘something and this broke his line of questioning.” ”

“Pursuant to Judge Decker’s order’ of October 17,

1969, Childrens. Press turned over its Roland debriefing

‘statement to, plaintiffs. This verge yg statement was

marked a& Roland Deposition Exhibit 2

* Debriefing statement.taken from C. RK. “Larry” Ro-

al by Golden Press, -August 31, 1966, pp. 3. 4 (Roland

Deposition Exhibit 1).

Prior to Roland's grand jury appearance, three or four

defense counsel reviewed with -him the evidence that had,

‘already been une overed by the grand jury (and apparent-

ly -séeured by defendants’ from debriefing sessions with

other witnesses), and Roland’s own knowledge about’ the

establishmerit of the prices fixed by publishers for sates

‘ of children’s liooks to’ schools and libraries. The comments

of counsel and the witness which were tape recorded

during the debriefing session subsequent to Roland's

grand jury appearance indicate the attitude of the wit-

ness and thie natire of his grand jury,testimony in this

‘sensitive area:

a a

“Now, yesterday you told us [the lawyers| about

“ome specific instances .... What did you tell him

[the cxaminer|. about, in specifics that you can re-

member? “As | told you yesterday | intended to: stay.

away from any specifies unless he erowded, and lie

didn’t crowd,” ,

» . ¢ : e

“I said as far as I know, Runyan |a discounting

wholesaler} fell in line. *Fell in line,’ you said? No,

‘L didn’t, I'm using it for you. Well L think the phrase

T used to him was Bob ‘went along with it’-because

it was’ to his. advantage to do so as he was getting

a piece of the business. Vs

Kach time you talked about conversations with

jobbers and to the best of your knowledge did ‘you

insixt that if was to the advantage of the w holesaler

to do it?, Yes.”* .

It has never been demonstrated, however often as-

serted, that the benefits to he derived from hobbling the

judicial process hy the doctrine ,of privileged attorney-.

corporate client communications exist, no less that they

are superior to, the benefits. of full-disclosure: that is the

“ Debriefing statement taken from C. R. “Larry” Ro-

land by Golden Press, August 31, 1966, pp. 6-7, 14 (Ro-

land Deposition Exhibit 1). ' .

ee oe

_principle upon which the entire. judicial process depends.

No answer has ever been documented to Professor Mor- .

gan ’s challenge: |

“Whether the client be a plaintiff « or a defendant or a

mere witness, he is subject to compulsory process and

may be required to disclose at the trial or hearing

every pertinent fact within his knowledge, under the

sanction of an oath or its equivalent that obliges him’

_ to tell the whole truth. If he told his lawyer the

‘truth, he must now tell the same thing from the wit-

ness box. If he told his lawyer a lie and sticks to it,

_ he will tell the same story at the trial or hearing. if

he told his lawyer the truth and now tells a lie, why

should he be protected froni exposure? Is the privi-

lege retained in order to protect perjurers? How can

tliat either directly. or indirectly further the adminis-

tration of justice? ” | ;

“The defendants have invoked the attorney-corporate

client privilege in this case to suppress factual admissions

contained in the debriefing statements. There can be no

_justifiggtion, in permitting the defendants to keep this

material secret and foreclose plaintiffs .from this access

to th® truth. The debriefing statements are not the prod-—

uct of a confidential or other type of relationship which

society should foster. Moreover, the debriefing interviews

constitute a serious invasion of the grand jury secrecy

and proceedings. s ,

In essence, the witnesses were questioned about. what

occurred before the grand jury so that corporate defense

counsel could parry and deflect the federal investigation.

The work product doctrine adequately protects whatever

interest may be asserted on behalf of this practice.

* Morgan, Foreword to Model Code of Evidence, 26-27.

(A-L.L. 1942) |

a yo

In the proceedings ‘below, the defendants sought to

conceal the absence of any factual basis for their claims

of attorney-corporate client privilege behind extended. and

hypothetical poliey discussions. The short answer is.that

the control group test does not, interfere with the ability

of corporate attorneys to give legal advice to the corpora-

tion and its proper representatives in confidence. : The’

corporation, through its management or effective control

group, may consult counsel -without fear of future dis-

_ cosure. Thé-attorney may exchange information and

opinions with those officials who need such material to

make corporate decisions. ‘These communications and dis- .

éussions, of. course, retain their traditional privilege. Only

factual material or report collected by the corporate.

attorneys from employees | outside the effective control

group‘are subject to disefosure: ‘In. this respegt, defen- _

dants cannot seriously contend that the’ public interest -

would be served Ay allowing-the truth to be suppressed

after a violation: of law has occurred.

os CONCLUSION

--———_——— -

For the foregoing reasons, the judgment of the Court

_ of Appeals should be reversed and the writ of mandamus

vacated.

Respectfully submitted,

- Lee A.’ Freeman,

Lee A. Freeman, JR.,

Attorneys for Petitioners.

1 North La Salle.Street | a

Chicago, Illinois 60602. ex

June, 1970

ee,

Witaaass J. Scorr

Attorney General

John P. Meyer

Special -Assistant Attorney

General

State of ILLINoIs

Cuauxcey H. Browsxa,

JR. >

Attorney General *

Gene Hal Williams,

Deputy Attorney General

State of West Vircinia

Tueopore L. Senpak

Attorney General

Wendell C. Hamacher

Assistant Attorney General

State of Inprana

Crawrorp C. Martin

Attorney General

‘Wayne C. Rodgers ~

Assistant Attorney General

State of Texas ~

Paut W. Brown |

Attorney General _ te |

_ Donald Weckstein

‘Ted B. Clevenger of

Assistant Attorneys .

*General |

State of Onto

Dovctas M. Heap

Attorney General

. Erie Mill

Assistant. Attorney General _

State of Minnesota

. Rosert W. Wanner

Attorney General -

@ George F. Sieker

Theodore L. Priebe

Assistant Attorneys

General

State of Wisconsin .

Kent Frizzen

Attorney General -

J. Eugene Balloun’

Special Assistant

_ Attorney General

State of Kansas —

~RicHarp L. Curry

Corporation C ounsel

City of Cxtcaco

Davip . Youne :

Attorney for Archbishop

and Bishops of the Six

Catholic Dioceses in Ohio

Cuartes EK. Grirrira, IIL

Director of Law

“Robert E. Kendrick

Deputy Metropolitan

Attorney °

- Metropolitan Government,

Of Nashville and David-

son County, TENNESSEE

“%

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.