# Brief for the Petitioner — Bernard M. Decker, United States District Judge v. Harper & Row Publishers, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1472%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Petitioner - **Published:** January 1, 1971 - **Citation:** 400 U.S. 348 ## Text | a o ‘ eMe LAU !, we oY oi: f | 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 - F et s BRIEF OF PETITIONERS Lee. A. FREEMAN Lee A. Freeman, Jr. © | “Attorneys for Petitioners. . One Narth LaSalle Street Chicago, Illinois | 60602 (List of Counsel’ for Petitioners continued on inside cover) -. The Scheffer Press, Inc.—ANdover 3-6850 P : Lee a e é . * & . | | | e ‘“ . f ; | | | | | oy4 io, _ “ Se | : . 4 P : 7 ‘ “ . a} =i : . ‘ 4 . "rosea 3 - ~ Lad | : . | | | | , .* - e Ay . . ” : . ; | a | | “ , . e ; | | , : Z | Ps : ’ . - a> m | 7 : : | | 7 | . | ’ Pk, a Ge ? R | | | “* e e e - . * | | . . ah | | : Sy . “ 3 : | . ° . > . : | : 7 ; : Fy ® é : . ' . ~ | | . . “ P ’ | . | | - F . - | \ : 2) : | | : . . . . : id - : | | . — ; ; | ’ ’ : ¥ , . | ~ . . x ; 7 . . . . . | | . . . n . , | : | | . . 5 bb ‘ sy. ; | * ; , wees | . . e . ; . ‘ STN EMERSON Ty PEO AM LPI PORTA SO LER Ie . . . . : ‘ “i ; . 4 = ~*~ ; SE SRI . ‘ . z . : ’ . e 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 . i ‘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 1 \. ‘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 ° us 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 "4 a e.; v « 2 4 ‘ ’ s : ' —~ 7 oe ¢ —_ : . a "«e - - ° e . / ~ oe 2 . ’ . _ ; t: S in . s * » » . i ee SS a ee ve ~: “ “ 4 +> . \ i . ing 7 \ ie « ke * > ‘ PAGE ~ a 5 ; | | | a . ‘ | : ae E at oe | ; é . PAC. SUPREME: COURT OF THE UN ITED STATES , ’ OcTOBER ‘Tex, 1969. ‘Ne Bat Pe oe - o 6 en ; 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, “° ~ \ a 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 a 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 id “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 - 4 , (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 4. 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 ° s- 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 ne * +, 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 f 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: ' 4. "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). —_— + a ’ ° , ° ° . . 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 * e 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 fi * - 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. c 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? . . we we 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 i) “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 ' a 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 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 . | - Ao 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 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). © Pactual statement® with respect to witnesses Thomp- 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 /" ee 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.’” 9 ; ] to tell him | had been + a 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. ) A ‘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 o 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”).” — es 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. te 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 should .not. he waived and confidentiality not broken ‘even © hy circulation of the debriefing statements among other y . hoa sof a eouipahiox whe HHH Lieecerttte—etettetetietetttrts tt named CU- e 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 ee ~ 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-_ s 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 7 '* a} “ — #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). ‘ — 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 “% --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1472%3A06. Public record. Not legal advice.