Petition — Knight v. Heaney (No. 79-75)

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Supreme Court, U.&

FILED

Supreme Court of the United

OcTOBER TERM, 1979

No.'¢ 9G -

LEON W. KNIGHT, Et AL.,

Pettttoners,

RODAK, JR., CLERK

Vv.

THE HonorastE GERALD W. HEANEY, UNITED

Srates Circuit JUDGE OF THE UNITED StaTES Court

oF APPEALS FOR THE E1gHTH Circuit, AND EARL R.

LARSON anp DONALD D. ALSOP, UNITED

Srates District J upGES OF THE UNITED States Dis-

TRICT CouRT FOR THE District OF MINNESOTA,

Respondents.

EDWIN VIEIRA, JR.

12408 Greenhill Drive

Silver Spring, Maryland 20904

JOHN J. FoGaRTY

8316 Arlington Boulevard

Fairfax, Virginia 22038

Attorneys for Petitioners

Of Counsel:

RAYMOND J. LAJEUNESSE, JR.

8316 Arlington Boulevard

Fairfax, Virginia 22038

16 July 1979

FANNON PRINTING CENTER, ALEXANDRIA, VIRGINIA 22302 (703) 546-3220

>a MME METRE EG. A

pe ty i

a ht asa tpt lage

IN THE

Supreme Court of the United States

OcTOBER TERM, 1979

No.

LEON W. KNIGHT, et At.,

Petitioners,

THE HonoraBLE GERALD W. HEANEY, UNITED

STATES CIRCUIT JUDGE OF THE UNITED STATES CouRT

oF APPEALS FOR THE EIGHTH Circuit, AND EARL R.

LARSON anp DONALD D. ALSOP, UNITED

States District JUDGES OF THE UNITED States Dis-

TRICT CouRT FOR THE District OF MINNESOTA,

Respondents.

MOTION FOR LEAVE TO FILE

PETITION FOR MANDAMUS

AND/OR PROHIBITION

Pursuant to Rule 31(1) of the Rules of this Court,

Petitioners Leon W. Knight, et alia, respectfully move

- for leave to file their annexed Petition for Extraordi-

nary Writ.

Petitioners further move this Court to order the

Honorable Gerald W. Heaney, United States Circuit

Judge of the United States Court of Appeals for the

Eighth Circuit, and Ear] R. Larson and Donald D.

Alsop, United States District Judges of the United

States District Court for the District of Minnesota, in

their capacities as Judges of the United States District

Court for the District of Minnesota, to show cause

why an extraordinary writ should not issue against

them.

EpWIn VIEIRA, JR.

12408 Greenhill Drive

Silver Spring, Maryland 20904

JOHN J. Fogarty

8316 Arlington Boulevard

Fairfax, Virginia 22038

Attorneys for Petitioners

Of Counsel:

RayMonp J. LaJEUNESSE, JR.

8316 Arlington Boulevard

Fairfax, Virginia 22038

16 July 1979

TABLE OF CONTENTS

ae ek A os a oa ee a ek as aw

i En ec ee ane bes cee ee Eee

I a gee al wee Bae Re gt kill Uke

CONSTITUTIONAL PROVISION AND FEDERAL RutEs oF Crvi.

TN 8 ee i ono ve aes aeaeeeeens

Quuerton PRROENTED «onc ccs ccvescscccsscctcnvceses

awenenine cop see CRE is von kbd ds bon bes OO eee

Reasons ror GRANTING THE WRIT...........----e000>

| A

II.

The District Court’s condonation of the United

Teaching Profession’s suppression of material

evidence in this case is an unprecedented mis-

application of Federal Rules of Civil Procedure

BG, Sey ey a OE OE vik ond Ss ctacsncansdensies

Besides rewarding the United Teaching Pro-

fession’s contempt for Federal Rules of Civil

Procedure 26, 30, and 34 in this case, the Dis-

trict Court’s sanction of its “stonewalling” and

“eovering-up” will encourage other unscrupu-

lous parties to flout those Rules at every op-

WUCUMEET. nin 40 sp 65.469 ewhse bead nys 00ed o06 508s

The District Court had no power to terminate

Petitioners’ discovery once they exposed a

scheme on the part of the United Teaching Pro-

fession to give false and incomplete testimony

and illegally to withhold physical evidence ...

Absent immediate intervention by this Court,

the District Court’s order of 4 April 1979 will

irreparably prejudice the vindication of Peti-

tioners’ constitutional freedoms .............

By denying Petitioners the opportunity to de-

velop a complete factual record in support of

their constitutional claims, the District Court’s

order of 4 April 1979 will defeat this Court’s

appellate jurisdiction over those claims ......

ii Table of Contents Continued

Page

ee Se SE Stu u'c do ¢ aa eRe eer ba ee tkee 55

Vantrscataow oF COUNGEL 1.2... cc cccccccccccccevees 56

TABLE OF AUTHORITIES

Cases

Alcorta v. Texas, 355 U.S. 28 (1957) ............... 45

Apco Oil Corp. v. Certified Transportation, Inc., 46

Wee: Ge Ce EOD ee bvsccaveuedbecsas 33

Aquascutum of London, Ine. v. S. S. American Cham-

pion, 426 F.2d 205 (2d Cir. 1970) ............... 14

Assman v. Fleming, 150 F.2d 332 (8th Cir. 1947) ..... 30

Atchison, T. & S. F. Ry. v. Barrett, 246 F.2d 846 (9th

Ey BRIERE GRR Dt emer Lana ce 30, 46

Atlass v. Miner, 265 F.2d 312 (7th Cir. 1959), aff’d,

Pee We CHD o Sncccuvccbbvneveadannbeie 29, 51

Banco Nacional de Credito Ejidal v. Bank of America

N. T. & S. A., 11 F.R.D. 497 (N.D. Cal. 1951) .... 35

Bandlow v. Rothman, 278 F.2d 867 (D.C. Cir. 1960) .. 31

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) 49

Bersch v. Drexel Firestone, Inc., 519 F.2d 974 (2d Cir.),

cert. denied, 423 U.S. 1018 (1975) ..............

a v. Hearst Corp., 519 F.2d 418 (9th Cir.

PME iss ete caeihucd ose ueth i aks hen domanbia ss vs

Blay v. Young, 509 F.2d 650 (6th Cir. 1974) ......... 4

Bodie v. Connecticut, 401 U.S. 371 (1971) ........... 45

Ex Parte Bradley, 74 U.S. (7 Wail.) 364 (1868) ..... 26, 38

Brady v. Maryland, 373 U.S. 83 (1963) ............. 45

Braziller v. Lind, 32 F.R.D. 367 (S.D.N.Y. 1963) ..... 38

Bros Inc. v. W. E. Grace Manufacturing Co., 351 F.2d

208 (5th Cir. 1965), cert. denied, 383 U.S. 939

COMOOE 600 pudevahun cdbte cick enatackepeuenes 46

Table of Authorities Continued iii

Page

Bruce v. Bohanon, 436 F.2d 733 (10th Cir.), cert. de-

nied, 408 U.S. 918:(1971) .....ccccccccccccccens 49

Budget Rent-A-Car of Missouri, Inc. v. Hertz Corp.,

55 F.R.D. 354 (W.D. Mo. 1972) .........cccces

Buffington v. Wood, 351 F.2d 292 (3d Cir. 1965) ... 25, 31

Camco, Ine. v. Baker Oil Tools, Inc., 45 F.R.D. 384

(EDD. "Tes SOG save eck cence et bb vsenspasaces 37

Cherney v. Holmes, 185 F.2d 718 (7th Cir. 1950) ..... 31

Clark v. piers gi R.R., 328 F.2d 591 (2d Cir.),

cert. denied, 377 U.S. 1006 (1964) ..............

Cogwill v. California, 396 U.S. 371 (1970) .......... 52

Colonial Times, Inc. v. Gasch, 509 F.2d 517 (D.C. Cir.

BUG), Sc ke dvalewekalsssdsneentanvuewes 25, 26, 29, 53

agar Fos Buckeye S.S. Co., 4 F.R.D. 310 (W.D. Pa.

BOGE sc pdhd aves concaasnes cid daigd Giratina aan ete

—— Corp. v. Ferm, 344 F. Supp. 924 (M.D. Pa.

De Beers Consolidated Mines, Ltd. v. United States,

BF Bs Be. eres rr ee Te 4, 26, 51

Dennis v. United States, 384 U.S. 855 (1966) ......... 52

Economic Development Corp. v. Model Cities Agency,

GIS FDA FEO (OE Coe, TOTS) 2 oc vccrcvcccdecncnes

Elrod v. Burns, 427 U.S. 347 (1976) ............485- 13, 50

Estate of Murdoch v. Pennsylvania, 432 F.2d 867 (3d

Pe pear eee eT eer t Ty ere 16, 47

In re Estelle, 516 F.2d 480 (5th Cir. 1975), cert. denied,

gk a | oes reer reer rere 26, 43

FDIC v. Glickman, 450 F.2d 416 (9th Cir. 1971) ...... 31

Fiske v. Buder, 125 F.2d 841 (8th Cir. 1942) ......... 46

Foley Lumber Industries, Inc. v. Buckeye Cellulose

Corp., 286 F.2d 697 (5th Cir. 1961) ............ 15

Fowler v. Wirtz, 34 F.R.D. 20 (S.D. Fla. 1963) ...... 44

Freehill v. Lewis, 355 F.2d 46 (4th Cir. 1966) ........ 44

iv Table of Authorities Continued

Page

Garcia v. American Marine Corp., 432 F.2d 6 (5th Cir.

TEE hop cic chinansdcauwaits weak eee, 15

General Dynamics Corp. v. Selb Manufacturing Co.,

481 F.2d 1204 (8th Cir. 1973), cert. denied, 414 U.S.

SU CUUESE Ui dns Vaxdadv hse f4idueaeee es 32, 33

General Motors Corp. v. Lord, 488 F.2d 1096 (8th Cir.

WONGD Seis Keb as Mba kdewan tes uuetcbunl ooeda cus 25

Glick v. McKesson & Robbins, Inc., 10 F.R.D. 477 (W.D.

Ms NN Ss so 884 be tadon $4 DR ae 33

Goldberg v. Ann-Vien, Inc., 29 F.R.D. 6 (N.D. Ga. 1961) 31

Goldner v. Chicago & N.W. Ry. System, 13 F.R.D. 326

SPO Bly SS A dawthad deeaeeeiaceic cs ts 36

Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir.

SOP) ines rang buptnk statins avaee ane 37

Greyhound Lines, Inc. v. Miller, 402 F.2d 134 (8th Cir.

WOE Wit nitesc gonad cee Aer aw everett 49

Guilford Nat’! Bank of Greensboro v. Southern Ry.,

297 F.2d 921 (4th Cir. 1962) ..........ccccccce. 36

Harkobusic v. General American Transportation Corp.,

31 F.R.D. 264 (W.D. Pa. 1962) ..............., 36

Hassenflu v. Pyke, 491 F.2d 1094 (5th Cir. rans |

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.

ect tte TE Te LLOR S53 46

Herbert v. Lando, —— U.S. ——, 47 U.S.L.W. 4401

ee ne On i PLE ES 40

Hertz v. Graham, 23 F.R.D. 17 (S.D.N.Y. 1958), aff'd,

292 F.2d 443, cert. denied, 368 U.S. 929 (1961) ... 31

Hirshhorn v. Mine Safety Appliances Co., 8 F.R.D. 11

ON NDT reduces tein Ghee etc 36

Houdry Process Corp. v. Commonwealth Oil Refinin

Co., 24 F.R.D. 58 (S.D.N.Y. 1959) ............. , 36

Hovse v. Mayo, 324 U.S. 42 (1945) ..............005. 16

Hudalla v. Chicago, M., S.P. & P.R.R., 10 F.R.D. 363

ES MEET SacbVetsvads bien acionsaa ro 37

Table of Authorities Continued v

Page

IBM Corp. v. Edelstein, 526 F.2d 37 (2d Cir. 1975) . 16, 26, 44

Jacobowitz v. Kremer, 7 F.R.D. 110 (S.D.N.Y. 1946) .. 33

Jaconski v. Avisun Corp., 359 F.2d 931 (3d Cir. 1966). 15

Kerr v. United States District Court. 511 F.2d 192 (9th

Cir. 1975), aff’d, 426 U.S. 394 (1976) ........-- 26, 48

Knight v. Alsop, 535 F.2d 466 (8th Cir. 1976) ........ 3, 51

Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73 (D.

Maes. 1976) ..occcecdsdcnddoncepecerscncspinas 37

La Buy v. Howes Leather Co., 352 U.S. 249 (1957) .... 25

Lee v. Habib, 424 F.2d 891 (D.C. Cir. 1972) ......... 45

Lee ogame eae v. Mishler, 526 F.2d 115 (2d Cir.

OTB): vo cdvscdordnd’s ccunicaewarenase there bhaes

Los Angeles Brush Manufacturing Corp. v. James, 272

UWE FOR IORI) cncis civ en dnwad cas avien vies case 25, 42

McClelland v. Carland, 217 U.S. 268 (1910) ........ 26, 53

McDonnell Douglas Corp. v. United States Distr'ct

Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied

sub nom. Flanagan v. McDonnell Douglas Corp.,

495 U.B. G11 CISTE) . cep eccccctesedscusvpess 26, 43

McManus v. Harkness, 11 F.R.D. 402 (S.D.N.Y. 1951) . 36

MeNally v. Simons, 1 F.R.D. 254 (S.D.N.Y. 1940) .... 34

Manbeck v. Ostrowski, 384 F.2d 970 (D.C. Cir. 1967),

cert. denied, 390 U.S. 966 (1968) ........---000. 31.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ... 4

Marcrina v. Smith, 18 F.R.D. 254 (E.D. Pa. 1955) .... 39

Maryland v. Soper, 270 U.S. 9 (1926) ........-+++++- 26

Miller v. Avirom, 384 F.2d 319 (D.C. Cir. 1967) ...... 15

Miller v. Pate, 386 U.S. 1 (1967) ....... ey Cp eRe Re 45

Miller v. United States, 403 F.2d 77 (2d Cir. 1968) .... 29

Mooney v. Holohan, 294 U.S. 103 (1935) ........+--- 45

Moore V. Hlinois, 408 U.S. 786 (1972) ...........--0-- 45

vi Table of Authorities Continued

Page

Morales v. Turman, 59 F.R.D. 157 (E.D. Tex. 1972) ... 37

Morrison Export Co. v. Goldstone, 12 F.R.D. 258

Cas & Oe RR ee ergy ree eee 34

Morrissey v. Brewer, 408 U.S. 471 (1972) ........... 1h

mee Houma Well Service, 413 F.2d 509 (5th Cir.

IPOS) vad dactendc che steeunst? ee TAT Pee ee

Napue v. Illinnis, 360 U.S. 264 (1959) ............... 45

National Utility Service, Inc. v. Northwestern Steel

and Wire Co., 426 F.2d 22 (7th Cir. 1970) ........ 36

In re Natta, 388 F.2d 215 (3d Cir. 1968) ............. 36

Neonex International Ltd. v. Norris Grain Co., 338 F.

Dap. CE Cee. o oxda vets dcthaadcceds 33

New Dyckman Theatre eg. v. Radio-Keith-Orpheum

Corp., 20 F.R.D. 36 (S.D.N.Y. 1955) .............

New Haven Inclusion Cases, 399 U.S. 392 (1970) ..... 16

Noonan v. Caledonia Mining Co., 121 U.S. 393 (1887). 15

Olympic Refining Co. v. Carter, 332 F.2d 260 (9th Cir.),

cert, denied, 379 U.S. 900 (1964) ................

Overseas Exchange Corp. v. Inwood Motors, Inc., 20

BD. SHB (IN ee soc ucxdeeebebenecans 34

Pacific Union Conference of Seventh-Day Adventists v.

Marshall, 434 U.S. 1310, 98 S.Ct. 2 (1977) ....... 53

Padovani v. Bruchhausen, 293 F.2d 546 (2d Cir. 1961) . 42

Palma v. Lake Waukomis Development Co., 48 F.R.D.

SS CWE. HG TG) oss cdndcd eaepeeetches 39

whesic , Checker Taxi Co., 238 F.2d 241 (7th Cir.

Parkhurst v. Kling, 266 F. Supp. 780 (B.D. Pa. 1967) . 34

Peacock Records, Inc. v. Checker Records, Inc., 365

(isn) (7th Cir. 1966), cert. denied, 385 U.S. 1003 mm

Penn-Central aaa and N & W Inclusion Cases, 389

U.S. 486 (1968)

Ex parte Peterson, 253 U.S. 300 (1920) ............. 49

Table of Authorities Continued vii

Page

Petry v. General Motors Corp., Chevrolet Division, 62

F.B.D. 357 (B.D. Pa. 1074) .......cccccccncvess

Pfizer v. Lord, 456 F.2d 545 (8th Cir. 1972) ......... 26, 51

Philadelphia Housing Authority v. American Radiator

& Standard Sanitary Corp., 50 F.R.D. 13 (E.D. Pa.

1970), aff’d, 438 F.2d 1187 (3d Cir. 1971) ........ 38

shes Lake Sales R.M., Inc., 510 F.2d 388 (10th Cir.

BOGE)” ic cic vbpvicc 5206s n00ns0eegsens stouseoenses

Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943) . * =

Roebling v. Anderson, 257 F.2d 615 (D.C. Cir. 1958) ... 36

Russell v. Southard, 53 U.S. (12 How.) 138 (1851) .... 15

Sanderson v. Winner, 507 F.2d 477 (10th Cir. 1974),

cert. denied sub nom. Nissan Motor Corp. v. San-

derson, 421 U.S. 914 (1975) .............eeee- 25, 42

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ..... 4, 25, 29

Scuderi v. Boston Insurance Co., 34 F.R.D. 463 (D. Del.

SIOGD . ckindvinnn ubeliscbier sib iu cesavaleetalstees 36

Ex parte Secombe, 60 U.S. (19 How.) 9 (1856) ....... 38

Shaffer v. Heitner, 433 U.S. 186 (1977) ............. 52

Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965) .. 39

Ex parte Simons, 247 U.S. 231 (1918) ............4.. 49

Ex parte Skinner & Eddy Corp., 265 U.S. 86 (1924) .. 48

Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). 52

Southern California Theatre Owners Ass’n v. United

States District Court, 430 F.2d 955 (9th Cir. 1970) 48

Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir. 1968) . 36

Speedrack, Inc. v. Baybarz, 45 F.R.D. 254 (E.D. Cal.

BPE “wae deceendnc 6i500.00some bbebehnteeanens 36

Stankewicz v. eget A Flovr Mills Co., 26 F. Supp.

WIGS CEL TAT Re BOOP. ob 0bs bec es gcccctevssecdace 33

Stearns v. Hertz Corp., 326 F.2d 405 (8th Cir.), cert.

denied, 377 U.S. 934 (1964) .........ccceeeeeees 15

Vili Table of Authorities Continued

Page

In re Stolkin, 471 F.2d 1331 (7th Cir. 1973) .......... 15

In re Stone, 569 F.2d 156 (D.C. Cir. 1978) ............ 4

Stonybrook Tenants Ass’n, Inc. v. Alpert, 29 F.R.D.

ee See Se SED MGS wre end bo GC odeuilosccadebess 32

Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966) .. 44

Thompson v. Board of Educ., 476 F.2d 676 (5th Cir.

SOUND. ced es ccnadenn cks@esuk tei debet Chie teicedi 49

Tidewater Oil Co. v. United States, 409 U.S. 151 (1972) 4

Tights, Inc. v. cus 441 F.2d 336 (4th Cir. 1971), i

cert, denied, 404 U.S. 852 (1971) ................

Time, Inc. v. Pape, 401 U.S. 279 (1971) .............. 16

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 398

CEPOE pewe eh endeds cheaark mehr chekcwia rides 30, 46

Transcontinental Motors, Inc. v. NSU Motorenwerke

Aktiengesellschaft, 45 F.R.D. 37 (S.D.N.Y. 1968) . 34

Trans World Airlines, Inc. v. Hughes, 332 F.2d 602 (2d

Ps BOE ELVES Na ON Sewer reek we Code bees beck 38

Ex parte United States, 287 U.S. 241 (1932) ......... 4

United States ex rel. Bradshaw v. Alldredge, 432 F.2d

ET Ge Cy MPN ia 04 6 Undine it OLE bots es wdcces 15

United States ex rel. Edelstein v. Brussell Sewing Ma-

chine Co., 3 F.R.D. 87 (S.D.N.Y. 1943) ........... 32

United States Alkali Export Ass’n, Inc. v. United

States, 325 U.S. 196 (1945) .................... 4

United States v. American Optical Co., 39 F.R.D. 580

CER SI BU 88s ah heise bas 37

United States v. Beatty, 232 U.S. 463 (1914) ..... 4, 26, 53

United States v. Bostic, 336 F. Supp. 1312 (D.S.C.),

aff’d, 473 F.2d 1388 (4th Cir. 1972), cert. denied,

O58 TE, WOE CO on ce ix nce, 29

United States v. Canon, 534 F.2d 139 (9th Cir.), cert.

denied, 425 U.S. 991 (1976) .........cc cece ce eee 15

United States v. Hemphill, 369 F.2d 539 (4th Cir.

BOOED 6 os cadncbacs tens Geveseeeteresckh ¥eanven, 26, 51

Table of Authorities Continued ix

Page

United States v. Knight’s Administrator, 66 U.S. 488

PERL oaseica reek cates nga caneysdenuabnveneress 15

United States v. Maryland and Virginia Milk Pro-

ducers Ass’n, 22 F.R.D. 300 (D.D.C. 1958) ....... 31

United States v. Moss-American, Inc., 78 F.R.D. 214

(E.D. Wis. 1978) ......ccccccvccccccesccccccecs 47

United States v. Rexach, 41 F.R.D. 180 (D. Puerto

Rico 1966) .nccccccccccecvdeseseuccccosesseses

United States v. Throckmorton, 98 U.S. 61 (1878) .... 46

United States v. United States District Court, 334 U.S.

BEB CIDEB) . nc cccevecsvcscacccccsvevsccaceess 26, 53

United States v. United States District Court, 444 F.2d

651 (6th Cir. 1971), aff’d, 407 U.S. 297 (1972) .... 29

Ex parte Uppercu, 239 U.S. 435 (1915) ......--.-++- 4,47

Walker v. West Coast Fast Freight, Inc., 233 F.2d 939

(Oth Cir. 1956) ....ccccvcccccccccsesscvcccccces

Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973) ...... 31

tas v. United States, 423 F.2d 795 (5th Cir.

DRE 5b ck ccd Ri Gaetan dace ewanped sere sundeneke

Westerr Electric Co., Inc. v. Stern, 544 F.2d 1196 (3d

Ee SD ins oie Nn SWS coh iesisncrvedsasensees 45

Wheeler v. Barrera, 417 U.S. 402 (1974) ............ 52

White v. Ragan, 324 U.S. 760 (1945) ............005. 45

William A. Meier Glass Co. v. Anchor Hocking Glass

Corp., 11 F.R.D. 487 (W.D. Pa. 1951) .......... 35

Williams v. Kaiser, 323 U.S. 471 (1945) ............ 16

Williams v. Simons, 355 U.S. 49 (1957) ..........--6- +

Wisconsin Barge Line, Inc. v. Coastal Marine Trans-

port, Inc., 414 F.2d 872 (5th Cir. 1969) .......... 16

Zenith Radio Corp. v. Radio Corp. of America, 121 F.

Supp. 792 (D. Del. 1954) .........ceeeeeeeeeees 36

Zucker v. Sable, 72 F.R.D. 1 (S.D.N.Y. 1975) ....... 37

In re Zweibon, 565 F.2d 742 (D.C. Cir. 1977) ......... 49

x Table of Authorities Continued

Page

United States Constitution

NE og 5.5 ois sd Sed edad hoses esabe 50, 52, 54

Fare REE 5 0 dks ccc cicces 4, 10, 25, 27, 28, 38, 45, 53

POULIN DIONE (oon ca bees cee Teiessicteurs 50

Statutes and Court Rules

United States Code

ee as OURO 5 vik. oe cbiciuecedvsndesds 3

BP Mee OE RESTO 6 ve cease ce davcasvervestes 11

ee SS CE CUED 0 6 vocb'a's 0vstséueearedos +

Oe Me SOUND 6 vb che vabnscensccascccs 2,3

SP SE ee RENEE is 8 0o Sess cbs bn cnnnaisneas 11

GP Uk. Be TD aviv c dacwapedb sGaees 11

DP SEs RE LIE CN ale 0 nitine baw eusuanness 11

OD Sian Bae COED keke accccesd cab seueetis 11

Federal Rules of Civil Procedure

SENG 62 sehen s areblns tes 4, 5, 25, 27, 28, 31, 40, 43, 53

Rule 26 ..... 4, 6, 18, 24, 25, 27, 28, 31, 32, 33, 40, 43, 50

eer or 4, 7, 25, 27, 28, 31, 32, 33, 40, 43, 53

Rule 34 ........ 4, 8, 23, 25, 27, 28, 35, 37, 40, 43, 49, 53

PS GS. cpa bvssccivedewseeviaut shcsneeecakwaers 17

BN GE cacvaesa 4, 9, 23, 25, 27, 28, 31, 38, 39, 40, 43, 53

ED owl eb v-tnn boys subas eek eahidas ban 23, 27, 49

— > >> -~ -~7—~<— —+-s —s- ©& a

Table of Authorities Continued xi

Page

Miscellaneous

Freeman, “The Attorney-Corporate Client Privilege:

An Obstacle to the Pursuit of Truth”, Litigation,

Vol. 2, No. 3 (Sprima@ 1976) 2... ccsccaccecccess

Moore’s Federal Practice (1978) .........eseeeeees 49

Sunderland, “The Theory and Practice of Pre-Trial

Procedure”, 36 Mich. L. Rev. 215 (1987) ........ 31

Vieira, “Are Public-Sector Unions Special Interest Po-

litical Parties?”, 27 DePaul L. Rev. 293 (1978) .. 13, 50

Wright & Miller, Federal Practice and Procedure:

SE LEDGE. sdb cbohaceveeces Sskabascresbeanees 31

_ Pe ere cv)

IN THE

Supreme Court of the United States

OcToBeR TERM, 1979

No.

LEON W. KNIGHT, Et AL.,

Petitioners,

THE HonorastE GERALD W. HEANEY, UNITED

States Circuit J UpGE OF THE UNITED StaTES CourRT

oF APPEALS FOR THE EIGHTH Circuit, AND EARL R.

LARSON anno DONALD D. ALSOP, UNITED

States District JUDGES OF THE UNITED STATES Dis-

TRICT CouRT FOR THE District OF MINNESOTA,

Respondents.

PETITION FOR MANDAMUS

AND/OR PROHIBITION

Petitioners Leon W. Knight, e¢ alia, respectfully

petition this Court to issue an extraordinary writ in

the nature of mandamus and prvhibition, directed to

the Honorable Gerald W. Heaney, Earl R. Larson,

and Donald D. Alsop, United States Circuit and Dis-

trict Judges, respectively, sit'ing as a three-judge

United States District Court in tie District of Minne-

sota, and requiring said Judges: (i) to vacate their

order of 4 April 1979, (ii) to vacate the order of 13

October 1978 issued by the Honorable Donald D. Al-

sop, and (iii) to order that Petitioners have the dis-

covery they requested in their Motion to Rescind the

Court’s order of 13 October 1978, made before the

three-judge District Court and denied in its order of

4 April 1979, and such further discovery and other

relief as the circumstances warrant.

OPINIONS BELOW

The District Court entered no opinions in connexion

with its orders of 4 April 1979 and 13 October 1978.’

The opinion of the United States Court of Appeals

for the Eighth Circuit, granting a petition for writ of

mandamus to compel the convention of a three-judge

court in this case, is reported at 535 F.2d 466.

JURISDICTION

On 19 December 1974, Petitioners filed their com-

plaint for injunctive relief in the United States Dis-

trict Court for the District of Minnesota, requesting a

statutory three-judge court pursuant to 28 U.S.C.

§ 2281 (1970).? And on 30 January 1975, they filed

*The orders appear at Petitioners’ Appendices (A.) 21-22 and

421-23 respectively. The District Court issued the earlier order

orally from the Bench on 13 October 1978; the wr'tten order, how-

ever, is dated 16 October 1978.

2 § 2281. Injunction against enforcement of State statute; three-

judge court required.

An interlocutory or permanent injunction restraining the en-

forcement, operation or execution of any State statute by restrain-

ing the action of any officer of such State in the enforcement or

execution of such statute or of an order made by an administrative

board or commission acting under State statutes, shall not be

granted by any district court or judge thereof upon the ground

of the unconstitutionality of such statute unless the application

therefor is heard and determined by a district court of three judges

under section 2284 of this title.

their amended complaint with the same request. A. 5.

On 13 February 1975, Petitioners moved the con-

vention of a three-judge court. The District Court, per

the Honorable Donald D. Alsop, heard Petitioners’

motion on 3 March 1975. On 23 December 1975, the

District Court filed its memorandum-opinion and or-

der denying the motion. A. 5-6.

Petitioners sought review of the District Court’s

order by petition for extraordinary writ in the United

States Court of Appeals for the Eighth Circuit. On

17 May 1976, that Court commanded the District Court

by writ of mandamus to convene the three-judge

panel.’ On 26 May 1976, the Honorable Floyd R. Gib-

son, Chief Judge, United States Court of Appeals for

the Eighth Circuit, designated the Honorable Gerald

W. Heaney, Earl R. Larson, and Donald D. Alsop to

hear the constitutional issues raised in Petitioners’

amended ¢omplaint. A. 7.

On 12 August 1976, Congress repealed 28 U.S.C.

§ 2281, but provided that the repeal ‘“‘shall not apply

to any action commenced on or before [that date]’’.*

On 4 April 1979, the District Court, per the Honor-

able Gerald W. Heaney, Earl R. Larson, and Donald

D. Alsop, entered the order of which Petitioners com-

plain. A. 16-17.

Under 28 U.S.C. §§ 1253 and 2281 (1970), this Court

has exclusive appellate jurisdiction over the merits of

the constitutional claims for injunctive relief that Pe-

titioners raise in their amended complaint. Therefore,

* Knight v. Alsop, 535 F.2d 466 (8th Cir. 1976).

* Pub, L. 94-381, § 7, 90 Stat. 1119, 1120.

procedurally, it has exclusive jurisdiction under the

All Writs Act, 28 U.S.C. § 1651 (1970), to hear their

Petition for Extraordinary Writ.’

Substantively, this Court has jurisdiction under 28

U.S.C. § 1651 (1970) to hear the Petition in order to

protect, and to give full force and effect to, its appel-

late authority ;* because the Petition concerns the in-

terpretation and enforcement of the Federal Rules of

Civil Procedure ;’ and because the Petition involves

the right of litigants to have material evidence not-

withstanding a court-order against its production."

CONSTITUTIONAL PROVISION AND FEDERAL RULES

OF CIVIL PROCEDURE INVOLVED

This Petition involves the Fifth Amendment to the

United States Constitution, and Ruies 16, 26, 30, 34,

and 37 of the Federal Rules of Civil Procedure, the

pertinent parts of which are as follows:

United States Constitution Amendment V

* * * nor shall any person * * * be deprived of life,

liberty, or property, without due process of law * * * .

* Tidewater Oil Co. v. United States, 409 U.S, 151, 160-61 (1972) ;

Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486,

486-87, 496-97 (1968); Williams v. Simons, 355 U.S. 49 (1957):

United States Alkali Export Ass’n, Inc, v. United States, 325 U.S.

196, 201-02 (1945) ; De Beers Consolidated Mines, Ltd. v. United

States, 325 U.S. 212, 216-17 (1945) ; In re Stone, 569 F.2d 156, 157

(D.C. Cir. 1978); Blay v. Young, 509 F.2d 650, 650-51 (6th Cir.

1974).

* E.g., Roche v. Evaporated Milk Ass’n, 319 U.S, 21, 25 (1943) ;

United States v. Beatty, 232 U.S. 463, 467 (1914) ; see Marbury v.

Madison, 5 U.S, (1 Cranch) 187, 175 (1803).

-"Schlagenhauf v. Holder, 379 U.S. 104, 110-11 (1964); see Ez

parte United States, 287 U.S, 241, 245-49 (1932).

* Ex parte Uppereu, 239 U.S, 435 (1915).

Federal Rule of Civil Procedure 16

Rute 16. Pre-TriaL ProcepureE; ForMULATING IssuEs.

In any action, the court may in its discretion direct

the attorneys for the parties to appear before it for a

conference to consider

(1) The simplification of the issues ;

(2) The necessity or desirability of amend-

ments to the pleadings ;

(3) The possibility of obtaining admissions of

fact and of documents which will avoid unneces-

sary proof;

(4) The limitation of the number of expert

witnesses ;

(5) The advisability of a preliminary reference

of issues to a master for findings to be used as

evidence when the trial is to be by jury;

(6) Such other matters as may aid in the dis-

position of the action.

The court shall make an order which recites the ac-

tion taken at the conference, the amendments allowed

to the pleadings, and the agreements made by the par-

ties as to any of the matters considered, and which

limits the issues for trial to those not disposed of by

admissions or agreements of counsel; and such order

when entered controls the subsequent course of the

action, unless modified at the trial to prevent manifest

injustice. The court in its discretion may establish by

rule a pre-trial calendar on which actions may be

placed for consideration as above provided and may

either confine the calendar to jury actions or to non-

jury actions or extend it to all actions.

Federal Rule of Civil Procedure 26

RvuLE 26. GENERAL PROVISIONS GOVERNING DISCOVERY.

(a) Discovery MetuHops. Parties may obtain discov-

ery by one or more of the following methods: deposi-

tions upon oral examination or written questions; * * *

production of documents or things or permission to

enter upon land or other property, for inspection and

other purposes; * * * and requests for admission. Un-

less the court orders otherwise under subdivision (c)

of this rule, the frequency of use of these methods is

not limited.

(b) Score or Discovery. Unless otherwise limited by

order of the court in accordance with these rules, the

scope of discovery is as follows:

(1) In General. Parties may obtain discovery

regarding any matter, not privileged, which is

relevant to the subject matter involved in the

pending action, whether it relates to the claim or

defense of the party seeking discovery or to the

claim or defense of any other party, including the

existence, description, nature, custody, condition

and location of any books, documents, or other

tangible things and the identity and location of

persons having knowledge of any discoverable

matter. It is not ground for objection that the in-

formation sought will be inadmissible at the trial

if the information sought appears reasonably cal-

culated to lead to the discovery of admissible

evidence.

* & me *

by the person from whom discovery is sought, and for

good cause shown, the court in which the action is

pending * * * may make any order which justice re-

quires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or ex-

pense, including one or more of the following: (1) that

the discovery not be had; * * * (4) that certain matters

not be inquired into, or that the scope of the discovery

be limited to certain matters * * * .

Federal Rule of Civil Procedure 30

Rute 30. Depostrions Upon OrAL EXAMINATION.

(a) WHEN Depositions May Be Taken. After com-

mencement of the action, any party may take the testi-

mony of any person, including a party, by deposition

upon oral examination. Leave of court, granted with

or without notice, must be obtained only if the plain-

tiff seeks to take a deposition prior to the expiration

of 30 days after service of the summons and complaint

upon any defendant or service made under Rule 4(e)

s *# #

i * * *

(d) Morton To TERMINATE OR LIMIT EXAMINATION.

At any time during the taking of the deposition, on

motion of a party or of the deponent and upon a show-

ing that the examination is being conducted in bad

faith or in such manner as unreasonably to annoy, em-

barrass, or oppress the deponent or party, the court in

which the action is pending or the court in the district

where the deposition is being taken may order the offi-

cer conducting the examination to cease forthwith

from taking the deposition, or may limit the scope and

manner of the taking of the deposition as provided in

Rule 26(c). If the order made terminates the examina-

tion, it shall be resumed thereafter only upon the order

of the court in which the action is pending. Upon de-

mand of the objecting party or deponent, the taking

of the deposition shall be suspended for the time neces-

sary to make a motion for an order. The provisions of

Rule 37(a)(4) apply to the award of expenses incur-

red in relation to the motion.

Federal Rule of Civil Procedure 34

Rue 34. Propuction or DocuMENTS AND THINGS AND

Entry Upon LAND FoR INSPECTION AND

OTHER PURPOSES

(a) Scope. Any party may serve on any other party

a request (1) to produce and permit the party making

the request, or someone acting on his behalf, to inspect

and copy, any designated documents (including writ-

ings, drawings, graphs, charts, photographs, phono-

records, and other data compilations from which in-

formation can be obtained, translated, if necessary, by

the respondent through detection devices into reason-

ably usable form), or to inspect and copy, test, or

sample any tangible things which constitute or contain

matters within the scope of Rule 26(b) and which are

in the possession, custody or control of the party upon

whom the request is served * * * .

(b) Procepure. The request may, without leave of

court, be served upon the plaintiff after commence-

ment of the action and upon any other party with or

after service of the summons and complaint upon that

party. The request shall set forth the items to be in-

spected either by individual item or by category, and

describe each item and category with reasonable par-

ticularity. The request shall specify a reasonable time,

place, and manner of making the inspection and per-

forming the related acts. * * * The party submitting

the request may move for an order under Rule 37(a)

with respect to any objection to or other failure to re-

spond to the request or any part thereof, or any failure

to permit inspection as requested.

Federal Rule of Civil Procedure 37

Rute 37. Farure To MAKE Discovery: SANCTIONS.

(a) Motion ror Orper CoMpELLIna Discovery. A

party, upon reasonable notice to other parties and all

persons affected thereby, may apply for an order com-

pelling discovery as follows:

(1) Appropriate Court. An application for an

order to a party may be made to the court in which

the action is pending, or, on matters relating to a

deposition, to the court in the district where the

deposition is being taken. An application for an

order to a deponent who is not a party shall be

made to the court in the district where the deposi-

tion is being taken,

(2) Motion. If a deponent fails to answer a

question propounded or submitted under Rules 30

*** or if a party, in response to a request for

inspection submitted under Rule 34, fails to re-

spond that inspection will be permitted as re-

quested or fails to permit inspection as requested,

the discovering party may move for an order com-

pelling an answer, or a designation, or an order

compelling inspection in accordance with the re-

quut.°"*

(3) Evasive or Incomplete Answer. For pur-

poses of this subdivision an evasive or incomplete

answer is to be treated as a failure to answer.

(4) Award of Expenses of Motion. If the mo-

tion is granted, the court shall, after opportunity

for hearing, require the party or deponent whose

conduct nezessitated the motion or the party or

attorney advising such conduct or both of them to

pay to the moving party the reasonable expenses

incurred in obtaining the order, including attor-

ney’s fees, unless the court finds that the opposi-

tion to the motion was substantially justified or

that other circumstances make an award of ex-

penses unjust. * * *

QUESTION PRESENTED

Does a District Court abuse its discretion and usurp

power under Federal Rules of Civil Procedure 16, 26,

30, 34, and 37, and the Fifth Amendment to the United

States Constitution, when it:

A. sua sponte and for no articulated reason,

enters an order terminating discovery in a com-

plex civil case, even though the parties from whom

discovery was sought requested no, and made no

showing of good cause for a, protective order; and

B. without either hearing or opinion, sustains

that order in the face of an unrefuted showing by

the parties seeking discovery that

1. material evidence exists in the exclusive

possession of the parties from whom discov-

ery was sought;

2. officials and staff-personnel of the latter

parties have testified falsely, evasively, or in-

completely under oath in depositions;

3. the latter parties and their attorneys

have willfully withheld evidence that the par-

ties seeking discovery requested, and that the

Court ordered, be produced; and

4. the parties from whom discovery was

sought have destroyed and may be destroying

evidence ?

STATEMENT OF THE CASE

Petitioners are twenty faculty-members of the Min-

nesota community colleges who brought this action in

the United States District Court for the District of

Minnesota, contending that the provisions of the Min-

nesota Public Employment Labor Relations Act

(PELRA) requiring them as a condition of public

employment to deal with the Minnesota State Board

for Community Colleges solely through an organiza-

tion of employees designated their ‘‘exclusive repre-

sentative’’ are repugnant, on their face or as applied,

to the United States Constitution. Petitioners’ amend-

ed complaint names as defendants the Minnesota Com-

munity College Faculty Association (MCCFA), an

employee-organization certified as Petitioners’ exclu-

sive representative under the PELRA;; its affiliates,

the National Education Association (NEA), the Min-

nesota Education ‘Association (MEA), and the Inde-

pendent Minnesota Political Action Committee for

Education (IMPACE); various former and present

officials and staff-personnel of those organizations ; and

officials of the State of Minnesota and the community

colleges who administer the PELRA. The amended

complaint alleges federal subject-matter jurisdiction

under 28 U.S.C. § 1343 and 49 U.S.C. §§ 1983, 1985(3),

1986, and 1994 (1970).

Petitioners intend to prove that NEA, MEA,

MCCFA, IMPACE, and their affiliates constitute a

single, integrated organization that styles itself the

United Teaching Profession (UTP) and operates

throughout the United States.° The UTP, Petitioners

contend, is substantially involved at the local, state,

and national levels in the campaigns of candidates for

election to public office. lobbying and other attempts

to influence governmental action, propaganda and agi-

* Dr. Craig E. Schneier, Assistant Professor of Organization Be-

havior and Personnel Administration at the University of Mary-

land, testified extensively under oath, as Petitioners’ expert wit-

ness, concerning ‘the structure and character of the UTP. On the

basis of his academic training, his experience as a private consult-

ant in the area of organizational behavior and analysis, his review

of the scholarly literature of organizational science, and his analy-

sis of numerous documents from NEA, MEA, MCCFA, and IM-

PACE, Dr. Schneier offered his expert opinion that: (i) The UTP

is a formal, complex organization consisting of various ‘‘units’’ or

‘‘levels’’, of which NEA constitutes the national level, MEA and

MCCFA represent numerous affiliates at the state and local levels,

respectively, and IMPACE represents numerous state-level politi-

cal-action committees. (ii) The UTP has differentiated itself into

local, state, and national levels in order to deal effectively with

various jurisdictions of government, including local school boards,

state legislatures, and the United States Congress. And (iii) al-

though geographically differentiated, each unit of the UTP is an

integral element of a single, nationwide organization; from the

perspective of organizational science, NEA, MEA, MCCFA, and

IMPACE are not separate and independent entities, but inter-

dependent parts of the same entity. A. 62-63.

The UTP is not formally cited in Petitioners’ amended com-

plaint because it exists in and through the mutual affiliation-agree-

ments and cooperative activities among NEA, MEA, MCCFA, and

IMPACE inter alia; and these sub-entities alone are amenable to

legal process. None the less, the UTP is the real defendant in this

case, because Petitioners do not complain of what NEA, MEA,

MCCFA, and IMPACE each do separately, but of what they all

do cooperatively through the intricate network of relationships that

integrates them in the UTP.

tation, litigation, and coalitions with sundry political

organizations, groups, and movements. Furthermore,

assert Petitioners, these political activities are essen-

tial, in the organization’s own view, to achieve its

goals.”

For that reason, Petitioners claim the UTP consti-

tutes a political-action organization indistinguishable,

for purposes of constitutional law, from a political

party. And therefore, they say, under this Court’s de-

cision in Elrod v. Burns, 427 U.S. 347 (1976), the

PELRA is unconstitutional in so far as it requires

Petitioners, as a condition of public employment, to

accept the UTP or any of its units or levels as their

‘“‘spokesman’’, ‘‘sponsor’’, or ‘‘representative’’ for any

purpose.

In their complaint, amended complaint, and motion

of 13 February 1975, Petitioners requested « statutory

three-judge court to determine the appropriateness of

injunctive relief for their constitutional claims. On 28

February 1975, the District Court, per the Honorable

Donald D. Alsop, heard arguments on Petitioners’ mo-

tion and the motion of defendants NEA, MEA,

MCCFA, and IMPACE to stay or dismiss the action.

Then, on 17 March 1975, the District Court ordered all

discovery suspended until resolution of defendants’

motion. A. 5-6.

Seven months later, on 24 October 1975, Petitioners

moved the District Court to open discovery; but the

Court denied their motion. A. 6.

4° On characterizing the listed activities as ‘‘politicai’’, and de-

fining ‘‘substantial’’ and ‘‘essential’’, see Vieira, ‘‘Are Public-

Seetor Unions Special Interest Political Parties?’’, 27 DePaul L.

Rev. 293, 323-44, 344-49 (1978).

On 23 December 1975, the District Court, per the

Honorable Donald D. Alsop, denied Petitioners’ mo-

tion to convene a three-judge court. Petitioners imme-

diately sought reversal of this order by extraordinary

writ in the United States Court of Appeals for the

Eighth Circuit. In the interim, on 31 March 1976, the

District Court denied Petitioners’ further motion to

compel, and granted the UTP’s motion to continue the

suspension of, discovery. A. 6, 7.

On 17 May 1976, the Court of Appeals issued a writ

of mandamus, commanding the District Court to con-

vene a three-judge court. And on 26 May 1976, the

Honorable Floyd R. Gibson, Chief Judge of the United

States Court of Appeals for the Eighth Circuit, desig-

nated the Honorable Gerald W. Heaney, Earl R. Lar-

son, and Donald D. Alsop as the three-judge panel.

| 4

On 10 June 1976, the District Court ordered that dis-

covery commence. A. 8. From then until discovery ter-

minated pursuant to court-order on 31 December 1978,

Petitioners worked to prove the UTP’s substantial

and essential involvement in political activism.

From the onset of discovery, however, the UTP in-

terposed one obstacle after another to disclosure of its

activities." For example, Petitioners’ first deponent,

The following narration of facts rests upon record-evidence

collected in the memorandum Petitioners submitted to the District

Court in support of their motion to extend discovery. A. 83-323.

This document and the several responsive memoranda before the

District Court are appropriately included in Petitioners’ Appen-

dices because cumulatively they contain all the evidence in issue.

Compare and contrast Aquascutum of London, Ine. v. $.S. Ameri-

can Champion, 426 F.2d 205, 213 n.6 (2d Cir. 1970).

Accompanying their memorandum-in-chief to the District Court,

Ralph Chesebrough, staff-man of MEA and Executive

Directer of MCCFA, testified to ignorance of how

IMPACE solicits MCCFA’s members for monetary

Petitioners filed nine volumes of exhibits and affidavits, These have

not been reproduced in Petitioners’ Appendices because: (i) The

UTP did not claim below that Petitioners’ memorandum-in-chief

misquotes any of the deposition-transcripts, or that any of the

UTP’s documents to which Petitioners refer in that memorandum

are not authentic or do not contain the language Petitioners quote.

(ii) The UTP did not file any counter-affidavits impugning the

truthfulness of Petitioners’ affiants. And (iii) the UTP did not

object to Petitioners’ submission of any of the deposition-tran-

scripts, documents, or affidavits. Objections not proffered below are

unavailing now. E.g., Noonan v. Caledonia Mining Co., 121 U.S.

393, 400 (1887).

In addition, the UTP may not submit any other evidence in this

Court. Petitioners’ Appendives contain everything the parties

ealled to the attention of the District Court on the motion to extend

discovery, and therefore constitute the complete and sufficient

record here. See, e.g., Foley Lumber Industries, Inc. v. Buckeye

Cellulose Corp., 286 F.2d 697, 698 (5th Cir. 1961). The UTP must

be satisfied with that on which it elected to rely below. Morrissey

v. Brewer, 408 U.S, 471, 475-77 (1972) ; accord, Economic Develop-

ment Corp. v. Model Cities Agency, 519 F.2d 740, 744 (8th Cir.

1975) (Heaney, J.); In re Stolkin, 471 F.2d 1331, 1340-41 (7th

Cir. 1973) ; United States ex rel. Bradshaw v. Alldredge, 432 F.2d

1248, 1250 (3d Cir. 1970) ; Weissinger v. United States, 423 F.2d

795, 798 (5th Cir. 1970) ; Miller v. Avirom, 384 F.2d 319, 321-22

& nn.8-12 (D.C. Cir. 1967). Neither affidavits, nor depositions,

briefs, oral arguments of counsel, or other documentary materials

may now be used to interject purported evidence into this case.

Affidavits: Russell v. Southard, 53 U.S. (12 How.) 138, 158-59

(1851); Stearns v. Hertz Corp., 326 F.2d 405, 408 (8th Cir.)

(Blackmun, J.), cert. denied, 377 U.S. 934 (1964) ; United States

v. Cannon, 534 F.2d 139, 140 (9th Cir.), cert. denied, 425 U.S. 991

(1976); Garcia v. American Marine Corp., 432 F.2d 6, 7-8 (5th

Cir. 1970). Depositions: United States v. Knight’s Administrator,

66 U.S. 488, 489-90 (1861); Jaconski v. Avisun Corp., 359 F.2d

931, 936 n.11 (3d Cir. 1966); Foley Lumber Industries, Inc.,

supra, 286 F.2d at 698. Briefs: Morrissey, supra, 408 U.S. at 475-

77. Oral arguments: Hassenflu v. Pyke, 491 F.2d 1094, 1095 (5th

contributions to the campaigns of candidates for pub-

lic office. Yet, other discovery later identified Chese-

brough as an important cog in IMPACE’s mechanism

of fund-raising among community-college faculty. A.

319-22.

Joseph Letorney, staff-man of NEA, testified eva-

sively about his activities as an ‘‘election pro’’ in re-

cruiting and organizing members of NEA to work in

the campaigns of candidates for public office. And, as

subsequent depositions of other witnesses established,

he testified falsely concerning participation by NEA’s

staff-personnel in the 1976 Democratic National Con-

vention. A. 247-59 & n.108.

Gene Mammenga, Director of MEA’s Governmental

Relations Department, testified that he had not par-

ticipated in the 1976 Carter-Mondale campaign, and

knew of no one from MEA who had. Petitioners later

discovered, however, that following the campaign

MEA’s President received a letter from President-

elect Jimmy Carter ‘‘pay[ing] tribute to Gene Mam-

Cir. 1974). Other materials: New Haven Inclusion Cases, 399 U.S.

892, 450 n.66 (1970); Bersch v. Drexel Firestone, Inc., 519 F.2d

974, 998 n.55 (2d Cir.), cert. denied, 423 U.S. 1018 (1975); Wis-

consin Barge Line, Ine. v. Coastal Marine Transport, Inc., 414

F.2d 872, 875-76 (5th Cir. 1969).

Moreover, because the UTP did not refute, and the District

Court made no findings of fact and issued no opinion contradict-

ing, Petitioners’ assertions, this Court should presume that the

facts Petitioners outline are true. See, ¢.g., Williams v. Kaiser, 323

U.S. 471, 473-74 (1945) ; House v. Mayo, 324 U.S, 42, 45 (1945) ;

IBM Corp. v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975); Estate

of Murdoch v. Pennsylvania, 432 F.2d 867, 870 (3d Cir, 1970).

Of course, since constitutional rights are implicated here, this

Court may examine the evidence itself and draw its own conclu-

sions. £.g., Time, Inc. v. Pape, 401 U.S. 279, 284 (1971).

menga * * * who made such generous contributions of

his time and energy on behalf of the Carter-Mondale

ticket”. A. 219-22.

Neil Sands, who held various positions in MCCFA,

and Roger Johnson, member of MCCFA and Chair-

man of IMPACE, both testified that MEA’s cadre of

political activists, the ‘‘1340 Club/Committee”, had

never had any significant existence, or had become

‘‘defunct’’. Yet, as later discovery showed, both Sands

and Johnson recruited MCCFA members for the

‘‘1340”’ organization; and, even as they were testify-

ing, “‘1340’’ operatives were engaged in extensive po-

litical activities throughout Minnesota. A. 313-18.

Simultaneously with these and other depositions,

pursuant to Federal Rule of Civil Procedure 36 Peti-

tioners requested the 1'TP to admit its substantial in-

volvement in partisan politics, lobbying, propaganda

and agitation, litigation, and political coalitions. The

UTP denied a majority of these requests, however,

notwithstanding dispositive evidence of their truth-

fulness in its own publications and document-files, and

in deposition-testimony of its officials and staff-person-

nel. A. 83-137.

By the Summer of 1978, then, Petitioners tentatively

concluded that NEA, MEA, MCCFA, IMPACE, and

their officials, staff-personnel, and attorneys had con-

spired to ‘‘stonewall’’ and ‘‘cover-up”’ the facts of

the UTP’s political activism. To expose the UTP’s

attempts illegally to suppress evidence, Petitioners em-

ployed a private detective, who infiltrated a political

campaign in Minnesota in September, 1978, and dis-

covered an NEA staff-man, R. Dick Vander Woude,

operating a telephone-bank under an assumed name on

behalf of a candidate for federal office. Even more

revealing, the detective then interviewed Kenneth

Bresin, Assistant Director of MEA’s Governmental

Relations Department, who informed him that Vander

Woude’s active (albeit surreptitious) role, and Bre-

sin’s relative inactivity, in the campaign resulted from

instructions of “‘NEA’s attorneys” in connexion with

this very case. A. 259-97.

Before Petitioners could depose either Bresin or

Vander Woude, the District Court ordered a ‘‘pre-

trial’’ conference. At the ensuing hearing on 13 Octo-

ber 1978, sua sponte and without any motion for a

protective order, the Honorable Donald D. Alsop

closed Petitioners’ discovery effective 31 December

1978. In connexion with this order, the District Court

articulated no reason for terminating discovery, found

no facts, and did not determine that NEA, MEA,

MCCFA, or IMPACE had shown good cause within

Federal Rule of Civil Procedure 26(¢) for a protective

order. A. 11-12; see A. 437-56.

Petitioners, however, did not then oppose the order

of 13 October 1978 for three reasons: First, absent

deposition-testimony from Bresin, Vander Woude, and

the investigator, the pattern of suppression of evidence

shown by the testimony of Chesebrough, Mammenga,

Sands, and Johnson, and by the UTP’s denials of the

requests to admit, was still fragmentary. Second, pre-

maturely to have revealed the private detective’s activ-

ities would have alerted the UTP to what he had un-

covered. And third, Petitioners could not be vertain

that the deponents they intended to call prior to 31

December 1978—including Bresin, Vander Woude, the

chief operatives of NEA’s and MEA’s political-action

and public-relations programs, and NEA’s Archivist

—would not, after all, satisfy their duties under state

and federal law to tell the whole truth and produce all

the documentary evidence Petitioners would demand

pursuant to subpoenae duces tecum.

Subsequent to 13 October 1978, though, the UTP

employed its tactics of ‘‘stonewalling”’ and ‘‘covering-

up’? even more ruthlessly than before. Both Bresin

and Vander Woude, for example, attempted to con-

ceal or minimize the nature and extent of their in-

volvement in the September, 1978, election in Minne-

sota. A. 259-97. The testimony of Sue Zagrabelny, an

MEA staff-woman who had long-standing experience

with the organization’s political programs and had

been a key figure in establishing the ‘‘1340” operation,

was more candid—but further confirmed that Mam-

menga, Sands, and Johnson had not testified truthfully.

A, 222, 316-17. Most replete with false and incomplete

testimony, though, were the depositions of Stanley

McFarland, Robert Harman, Rosalyn Baker, and

Susan Lowell, NEA’s Director of Governmental Re-

lations, Associate Director of Governmental Relations,

Manager of Contacts with Federal Agencies, and Di-

rector of Communications, respectively.

Despite the UTP’s ‘‘cover-up’’, Petitioners estab-

lished that, at least twenty-two months before the 1976

general elections, NEA’s Governmental Relations De-

partment prepared a master-plan for mobilizing UTP

members throughout the United States as campaign-

workers for a presidential candidate, and for coordi-

nating this activity with the candidate’s campaign-

staff. Yet McFarland denied that a master-plan ex-

isted, or that the UTP began planning its intervention

in the 1976 presidential election prior to the Summer

of that year. He admitted that NEA requested its state-

level affiliates to submit presidential-election plans in

mid-1976, but professed ignorance of what the plans

entailed, or what happened to them. Harman, too,

claimed no recollection of these plans or their utiliza-

tion, although McFarland identified him as the man

in charge of dealing with them. Furthermore, the rec-

ord indicates that NEA planned extensively with re-

gard to the presidential election, on its own and with

its state-level affiliates, from before 1975 to the 1976

general elections—and that both McFarland and Har-

man were central actors in the development and im-

plementation of the UTP’s campaign-operation. A.

137-43, 195-213, 412-13 n.2.”

NEA’s master-plan for the 1976 presidential elec-

tion foresaw selecting UTP personnel as liaisons with

the candidate’s campaign-staff. McFarland admitted

that NEA supplied Carter-Mondale campaign-coordi-

nators with names of the UTP’s officials and staff-

personnel throughout the United States who might co-

operate with the campaign. But, incredibly, he claimed

no knowledge of what cooperation was intended or

** Petitioners unearthed NEA’s master-plan fortuitously. An in-

ternal NEA memorandum produced during discovery referred to

one C.T. Shotts, a doctoral candidate studying the history of NEA’s

political-action arm, the National Education Association Political

Action Committee (NEA-PAC). Through University Microfilms,

Petitioners acquired a copy of Shotts’ completed thesis, ‘‘The

Origin and Development of the National Education Association

Political Action Committee, 1969-1976’’. As the title states, the

thesis dealt exclusively with NEA-PAC. But Anpendix G, added

apparently as an afterthought, reproduced the text of NEA’s

‘Governmental Relations Program to Implement the NEA Presi-

dential Endorsement Procedure’ (dated 13 January 1975), the

outline of NEA’s 1976 presidential-campaign-strategy. See A. 137-

43. Unfortunately, Petitioners received the Shotts thesis only after

deposing McFarland, Baker, Harman, and Lowell.

occurred. And Harman would not even admit knowing

how Carter-Mondale campaign-coordinators contacted

certain of NEA’s state-level affiliates identified in

NEA’s own publication. A. 137-43, 214-19.

NEA’s master-plan for the 1976 presidential elec-

tion also involved recruiting UTP members as cam-

paign-workers for the candidate. McFarland admitted

that the UTP intended to mobilize its members for the

Carter-Mondale ticket; but he denied that NEA dis-

tributed kits containing directions on how its local-

level affiliates could organize campaign-workers. Low-

ell, too, claimed not to know what the kits—admittedly

produced by NEA’s Communications Department—

contained. She also testified that she knew nothing

about what UTP members did as Carter-Mondale cam-

paign-workers. Yet, inconsistently, she conceded that

Harman had provided her with information on a con-

siderable range of campaign-activities by members on

behalf of Carter-Mondale. Harman, furthermore, de-

nied that NEA had assigned, or even made contingency-

plans to assign, any of its staff-personnel to the Car-

ter-Mondale campaign. But NEA’s master-plan con-

tained such assignations; and Harman had discussed

such a strategy with his staff in May of 1976. A. 137-

43, 223-28.

The UTP’s assistance to the Carter-Mondale ticket

in 1976 included its ‘‘member-contact program’’: the

mobilization of some 1,100 staff-personnel throughout

the United States to establish telephone-banks for

some 75,000 callers to solicit the votes of hundreds of

thousands of the UTP’s members on behalf of the

ticket. McFarland, however, denied knowledge of that

program, of any get-out-the-vote activities by NEA—

or even of any campaign-activities of the very staff-

personnel his Department had assigned to establish,

implement, and report on the “‘member-contact”’ pro-

gram. Indeed, in the face of an NEA document refer-

ring to get-out-the-vote materials, McFarland claimed

no recollection of what had happened. Baker, too, pro-

fessed a lack of memory about the ‘‘member-contact”’

program—although, as Harman later admitted, she

was primarily responsible for implementing it. A.

229-34.

Under its sophisticated budgeting system, NEA rou-

tinely evaluates its activities. None the less, Harman

testified that assessments of UTP members’ involve-

ment in the 1976 Carter-Mondale campaign, and other

political campaigns, were non-existent. McFarland,

though, said that Harman had reported to him what

transpired in various states (although McFarland

claimed not to remember specifics). Lowell admitted

that Harman had been her main source of information

about what UTP members did for the Carter-Mondale

ticket (although, again, she claimed no memory of

details). And Vander Woude recalled that he had pro-

vided Harman with on-going assessments of UTP

members’ campaign-involvement. In addition, Har-

man professed no recollection of post-election surveys

of the extent to which NEA’s affiliates or members had

participated in the 1976 campaign—or in the 1972,

1974, or 1978 campaigns, for that matter. Yet McFar-

land admitted that NEA had requested such informa-

tion from its state-level affiliates (although he failed

to remember what the assessments showed). Finally,

Harman claimed no knowledge of how NEA acquired

the information on its members’ involvement in can- ©

didates’ campaigns regularly published in its news-

paper. Lowell, though, identified Harman as the pri-

mary source for these publications. A. 237-47.

Besides false and incomplete testimony, the UTP’s

program of ‘‘stonewalling’’ and ‘‘covering-up”’ in-

cluded suppression of documentary evidence. Pursu-

ant to Federal Rules of Civil Procedure 34 and 45,

Petitioners obtained a court-order that the UTP pro-

duce the contents of the NEA Archives for inspection.

But the UTP’s attorneys unilaterally limited produc-

tion to what they saw fit to reveal—and even ad-

mitted as much on the record in the deposition of

NEA’s Archivist. Moreover, besides producing only a

small portion of the Archives, the UTP withheld cer-

tain other files and’ specifically identified documents.

And its atttorneys and staff-personnel also acknowl-

edged that files and documents that post-date the filing

of Petitioners’ complaint have been, or are now being,

destroyed. A. 145-92.

These facts convinced Petitioners that NEA, MEA,

MCCFA, IMPACE, and their officials, staff-person-

nel, and attorneys had conspired to proffer false, eva-

sive, and incomplete testimony ; to sequester or destroy

documentary evidence; and otherwise to impede Peti-

tioners’ full discovery in this case. Therefore, on 30

December 1978, Petitioners moved the District Count

under Federal Rule of Civil Procedure 37 to rescind

its order of 13 October 1978, and to order that the

UTP make certain files, and the NEA Archives, avail-

able for direct inspection, that certain persons be de-

posed for a second time before a magistrate, that cer-

tain other persons be deposed, and that the UTP pay

all related fees and costs. A. 25-31. Supporting this

motion, Petitioners filed a documented memorandum,

together with nine volumes of exhibits and affidavits.

A. 35-331. In response, the UTP filed a short memo-

randum replete with general denials, but devoid of

specific refutations, of the facts Petitioners adduced.

A. 335-66, and compare with Petitioners’ responsive

memorandum, A. 369-95.

On 2 February 1979, the District Court, per ‘the

Honorable Donald D. Alsop, held a hearing. However,

although all counsel were prepared to argue the merits

of Petitioners’ motion, the District Court denied oral

argument. And no argument was allowed prior to the

entry of the Court’s order of 4 April 1979, over the

signatures of the Honorable Gerald W. Heaney, Earl

R. Larson, and Donald D. Alsop, denying Petitioners’

motion and commanding the parties to submit stipula-

tions of facts, lists of exhibits and witnesses, and pre-

trial briefs. A. 14, 16-17, 421-23. The District Court

provided no written opinion supporting its decision.

Neither did it specifically find that Petitioners had not

established a ‘‘cover-up’’ on the part of the UTP. Nor

did it rule that the UTP had shown good cause under

Federal Rule of Civil Procedure 26(c) for an order

terminating discovery.

Petitioners then moved for dissolution or stay of the

order of 4 April 1979, and for reconsideration of and

hearing on their earlier motion to extend discovery.

A. 427-30. On 20 June 1979, the District Court, per the

Honorable Donald D. Alsop, denied this motion. A.

471-72.

Petitioners now bring their Petition for Extraordi-

nary Writ to review the District Court’s orders of 13

October 1978 and 4 April 1979.

REASONS FOR GRANTING THE WRIT

This Court should grant the Petition for five rea-

sons:

First, the District Court’s orders of 13 October 1978

and 4 April 1979 raise questions, heretofore never ad-

dressed by any federal appellate court, concerning im-

portant aspects of discovery under Federal Rules of

Civil Procedure 16, 26, 30, 34, and 37, and the Fifth

Amendment to the United States Constitution. More-

over, the District Court’s actions demonstrate the need

for this Court to issue guidelines and standards to

resolve the problems of discovery that have arisen in

this case, and to minimize future error and uncertainty

in the application of the Rules to other cases.”

Second, the District Court’s orders may encourage

an erroneous practice likely to recur with increasing

frequency. If permitted, this practice will curtail and

distort the application of Federal Rules of Civil Pro-

cedure 16, 26, 30, 34, and 37 in a manner both un-

contemplated by this Court and Congress and uncon-

stitutional—in effect, perverting and nullifying these

provisions in favor of malfactors, rather than correct-

ing wrongdoers’ misuse of the Rules.”

Third, the District Court’s orders are so egregiously

erroneous, and so inconsistent with precedent and any

tenable interpretation of Federal Rules of Civil Pro-

cedure 16, 26, 30, 34, and 37, and the Fifth Amend-

18 See Schlagenhauf v. Holder, 379 U.S, 104, 111-12 (1964) ;

General Motors Corp. v. Lord, 488 F.2d 1096, 1099 (8th Cir. 1973) ;

Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524-25 (D.C. Cir.

1975).

4 See La Buy v. Howes Leather Co., 352 U.S. 249, 258 (1957) ;

Los Angeles Brush Manufacturing Corp. v. James, 272 U.S. 701,

705-08 (1927); Sanderson v. Winner, 507 F.2d 477, 479 (10th

Cir. 1974), cert. denied sub nom. Nissan Motor Corp. v. Sanderson,

421 U.S, 914 (1975) ; Buffington v. Wood, 351 F.2d 292, 294 & n.4

(3d Cir, 1965).

ment to the United States Constitution, that their en-

try constitutes an usurpation of power."

Fourth, although beyond its powers and concerned

only with matters outside the merits of the case, the

District Court’s orders, absent timely intervention by

this Court, will remain in force and will substantially

and irreparably injure Petitioners throughout the fu-

ture course of proceedings below, and on appeal.”

Fifth, by preventing Petitioners from developing a

complete factual record in support of their constitu-

tional claims, the District Court’s orders may subvert,

or even defeat, this Court’s appellate jurisdiction over

those claims.”

** See McDonnell Douglas Corp. v. United States District Court,

523 F.2d 1083, 1087 (9th Cir. 1975), cert. denied sub nom. Flana-

gan v. McDonnell Douglas Corp., 425 U.S. 911 (1976); Kerr v.

United States District Court, 511 F.2d 192, 196 (9th Cir. 1975),

aff’d, 426 U.S. 394 (1976); In re Estelle, 516 F.2d 480, 488 (5th

Cir. 1975) (Godbold, J., concurring), cert. denied, 426 U.S, 925

(1976).

** See De Beers Consolidated Mines, Ltd. v. United States, 325

U.S. 212, 216-17 (1945); Maryland v. Soper, 270 U.S. 9, 29-30

(1926); Ex parte Bradley, 74 U.S. (7 Wall.) 364, 376 (1868) ;

Pfizer, Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir. 1972) ; IBM

Corp. v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) ; Colonial Times,

Inc. v. Gasch, 509 F.2d 517, 525-26 (D.C. Cir. 1975) ; United States

v. Hemphill, 369 F.2d 539, 543 (4th Cir. 1966).

** See McClelland v. Carland, 217 U.S. 268, 280 (1910) ; United

States v. United States District Court, 334 U.S. 258, 263 (1948) ;

Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943); United

States v. Beatty, 232 U.S. 463, 467 (1914); Colonial Times, Inc.

v. Gasch, 509 F.2d 517, 525-26 (D.C. Cir. 1975).

I. The District Court’s condonation of the United Teaching

Profession’s suppression of material evidence in this case

is an unprecedented misapplication of Federal Rules of

Civil Procedure 16, 26, 30, 34, and 37.

The District Court had no power under Federal

Rules of Civil Procedure 16, 26(c), 30(d), 34, and

37(a), and under the Fifth Amendment to the United

States Constitution, to terminate discovery in this

case, sua sponte and without a showing of good cause

by the UTP, after Petitioners made an unrefuted dem-

onstration that:

1. material evidence exists in the UTP’s exclu-

sive knowledge or possession ;

2. officials and staff-personnel of the UTP testi-

fied falsely, evasively, or incompletely under oath

in depositions ;

3. the UTP and its attorneys willfully withheld

documentary evidence that Petitioners requested,

and that the District Court ordered, be produced

pursuant to Federal Rules of Civil Procedure 34

and 45;

4. the UTP admittedly destroyed, and may be

destroying, documentary evidence that post-dates

the filing of Petitioners’ complaint; and

5. this wrongdoing is the product of concerted

action among the UTP and its officials, staff-per-

sonnel, and attorneys, designed to impede the ad-

ministration of justice by denying Petitioners ac-

cess to facts necessary to prosecute thir constitu-

tional ciaims.”

18 Both direct evidence and the logic of ‘the situation establish a

conspiracy among the UTP and its counsel. First, the disclosures

made by MEA’s staff-man Bresin to Petitioners’ private investiga-

Moreover, because of the extraordinary circumstances

of this case, the District Court had a duty under Fed-

eral Rule of Civil Procedure 37(a) and the Fifth

Amendment to order the UTP to make further discov-

ery to purge the record of its previous misconduct, and

to enable Petitioners to adduce all the facts the Fed-

eral Rules entitle them to bring forward.

Enforcement of this absence of power and duty re-

quires construction and application of Federal Rules

of Civil Procedure 16, 26(c), 30(d), 34, and 37(a),

and the Fifth Amendment, in a new context. To Peti-

tioners’ knowledge, no federal appellate tribunal has

yet addressed this problem. As an issue of first impres-

tor directly link ‘‘NEA’s attorneys’’ to efforts of MEA and NEA

to disguise what their staff-men Bresin and Vander Woude did in

the 1978 elections. A. 264-66, 287-97.

Second, the central actors in the withholding of documents that

Petitioners requested be produced, and in the bad-faith responses

to Petitioners’ requests to admit, were the UTP’s counsel and their

assistants. A. 143-91, 84-88.

Third, in the face of Petitioners’ documented charges, the

UTP’s counsel have done nothing to explain or attempt to rehabili-

tate any of the deponents who testified falsely, evasively, or incom-

pletely concerning the UTP’s involvement in political activism.

See A. 382-87.

And fourth, it is unreasonable to presume that Baker, Bresin,

Chesebrough, Harman, Johnson, Letorney, Lowell, Mammenga, Mc-

Farland, Sands, and Vander Woude all took it upon themselves,

either individually or in combination, to testify as they did. This

group contains persons connected with each level of the UTP: NEA

(Baker, Harman, Letorney, Lowell, McFarland, Vander Woude),

MEA (Bresin, Chesebrough, Mammenga), MCCFA (Chesebrough,

Johnson, Sands), and IMPACE (Bresin, Johnson, Mammenga).

That these people, who occupy official or staff positions throughout

the UTP, would testify as they did, without consulting counsel or

in defiance of counsels’ instructions, staggers the imagination.

sion, then, it is appropriate for consideration under the

All Writs Act.”

What this case does not entail reveals its unprece-

dented character. Petitioners do not seek to adduce

facts without legal significance, or proofs without ef-

fect at trial.”” Rather, the District Court denied them

an opportunity fully to establish the nature and ex-

tent of the UTP’s political activism, particularly in

the campaigns of candidates for election to public of-

fice—matters central to proof that the UTP is a politi-

cal-action organization and therefore disqualified from

imposing itself on Petitioners under color of law as

their ‘‘spokesman’”’ or ‘‘sponsor”. A. 46-80. Neither do

Petitioners demand the production of documents they

already have.” Rather, the District Court foreclosed

access to documents Petitioners know exist in the

UTP’s exclusive possession, have requested it produce,

and have not received because of its misconduct. A.

143-90. Nor have Petitioners failed to examine wit-

nesses, to question them about documentary evidence,

or to attack their credibility.” Rather, the District

Court disallowed further examinations even though

1° Schlagenhauf v. Holder, 379 U.S, 104, 110-11 (1964) ; Colonial

Times, Inc. v. Gasch, 509 F.2d 517, 524-25 (D.C. Cir. 1975) ; United

States v. United States District Court, 444 F.2d 651, 655-56 (6th

Cir, 1971), aff’d, 407 U.S. 297 (1972) ; Miller v. United States, 403

F.2d 77, 79 (2d Cir. 1968) ; Atlass v. Miner, 265 F.2d 312, 313-14,

319 (7th Cir. 1959), aff’d, 363 U.S. 641 (1960).

2° Contrast, e.g., Murphy v. Houma Well Service, 413 F.2d 509,

511 (5th Cir. 1969).

21 Contrast, e.g., Price v. Lake Sales R.M., Inc., 510 F.2d 388,

392 (10th Cir. 1974).

22 Contrast, e.g., United States v. Bostic, 336 F. Supp. 1312, 1314-

15 (D.S.C.), aff’d, 473 F.2d 1388 (4th Cir. 1972), cert. denied, 411

U.S. 966 (1973).

the depositions bristle with false, evasive, and incom-

plete testimony; and with admissions that the UTP

has withheld and destroyed material documents that

post-date the filing of Petitioners’ complaint. A. 190-

323. Nor does the testimony of the UTP’s officials and

staff-personnel, and the non-production of its docu-

ments, reflect mere confusion, inadequate record-keep-

ing, or honest mistakes on their part.” Rather, the

District Court terminated discovery notwithstanding

Petitioners’ unrefuted demonstration that the UTP

has concealed evidence. Nor has their own. inaction,

and not the UTP’s misconduct, injured Petitioners.”

Rather, in the face of Petitioners’ exposure of its activ-

ities, the District Court rewarded the UTP, the very

party that induced witnesses to testify falsely and

that withheld and destroyed documents it had a duty

to produce. Nor did Petitioners’ request for further

discovery rest on mere assertions, and not upon evi-

dence, of the UTP’s wrongdoing.” Rather, the District

Court discounted over two hundred pages of evidence

substantiating Petitioners’ charges, without any refu-

tation by the UTP, or any finding by the Court itself

that even one of those charges is without foundation.

Nor, finally, did the District Court judge the credibil-

ity of the UTP’s officials and staff-personnel by first-

hand observation.” Rather, the Court entered its order

* Contrast, e.g., United States v. Rexach, 41 F.R.D. 180, 185

(D. Puerto Rico 1966).

* Contrast, e.g., Toledo Seale Co. v. Computing Seale Co., 261

U.S. 398, 420-23 (1923).

*° Contrast, e.g., Parker v. Checker Taxi Co., 238 F.2d 241, 244

(7th Cir, 1956).

** Contrast, e.g., Assman v. Fleming, 150 F.2d 332, 336-37 (8th

Cir. 1947) ; Atchison, T. & S.F. Ry. v. Barrett, 246 F.2d 846, 849-

50 (9th Cir. 1957).

of 4 April 1979 without seeing a single witness, hear-

ing oral argument, or issuing an opinion that suggests

any familiarity with what has transpired during the

course of discovery in this case.

Decisions under Federal Rules of Civil Procedure

16, 26, 30, and 37 also illuminate the unprecedented

misconception of its power the District Court enter-

tained. A primary objective of Rule 16, for example,

is to eliminate the ‘‘sporting theory of justice’’, by

replacing traditional strategies of concealment, dis-

guise, guile, sham, and legal sparring with the policy

of full disclosure.” The Rule envisions an expedited

trial that adjudicates honest disputes of facts on their

merits, rather than on the basis of tactical advantage

and surprise.” Yet such a trial presupposes complete

discovery—implying that Rule 16 can be, as it has

been, used to determine what discovery is necessary,

and to compe! disclosure of relevant information.”

Here however, without any explanation the District

27 F.g., Clark v. Pennsylvania R.R., 328 F.2d 591, 594 (2d Cir.),

cert. denied, 377 U.S. 1006 (1964) ; Bandlow v. Rothman, 278 F.2d

867, 868-69 (D.C. Cir. 1960); Cherney v. Holmes, 185 F.2d 718,

721 (7th Cir. 1950); Sunderland, ‘‘The Theory and Practice of

Pre-Trial Procedure’’, 36 Mich. L. Rev. 215, 226 (1937).

8 F.g., Wallin v. Fuller, 476 F.2d 1204, 1208 (5th Cir. 1973) ;

FDIC v. Glickman, 450 F.2d 416, 419 (9th Cir. 1971) ; Manbeck

v. Ostrowski, 384 F.2d 970, 975 (D.C. Cir. 1967), cert. denied, 390

U.S. 966 (1968); Walker v. West Coast Fast Freight, Inc., 233

F.2d 939, 941 (9th Cir. 1956); 6 Wright & Miller, Federal Prac-

tice and Procedure: Civil § 1522, at 567 (1970).

7° Buffington v. Wood, 351 F.2d 292, 297-98 (3d Cir. 1965) ;

United States v. Maryland and Virginia Milk Producers Ass’n, 22

F.R.D. 300, 302 (D.D.C. 1958); Goldberg v. Ann-Vien, Inc., 29

F.R.D. 6, 7 (N.D. Ga. 1961) ; Hertz v. Graham, 23 F.R.D. 17, 19

(S.D.N.Y. 1958), aff’d, 292 F.2d 443, cert. denied, 368 U.S. 929

(1961).

Court denied Petitioners the very discovery they

proved necessary.” The Court’s order of 4 April 1979,

then, does not advance the purpose of Rule 16. Quite

the contrary: Instead of interring the ‘‘sporting

theory of justice’, the order resurrects it. Instead of

penalizing concealment, the order rewards it. In-

stead of simplifying and sharpening the factual issues

in the case, the order complicates and beclouds them.

Instead of facilitating presentation of Petitioners’

proofs at trial, the order frustrates it. And instead

of expediting proceedings, the order delays them,

and makes unlikely the resolution in a single trial and

appeal of the constitutional issues Petitioners raise.”

Similarly, the District Court misconceived its power

under Rules 26(c) and 30(d). In complex litigation

particularly, a trial-court should not curtail discovery

unless some limitation is essential.” Indeed, for a pro-

tective order a party must demonstrate practical and

substantial reasons, based on specific facts drawn from

testimony and other appropriate sources, rather than

*° The District Court did not predicate, nor could it rationally

have predicated, its sweeping preclusion of discovery on the irrele-

vance to their theory of the case of the testimony and documents

Petitioners seek. Contrast New Dyckman Theatre Corp. v. Radio-

Keith-Orpheum Corp., 20 F.R.D. 36, 37 (S.D.N.Y. 1955), with

A. 46-80. Indeed, it articulated no specific reason for terminating

discovery, either at the hearings of 13 October 1978 and 2 Febru-

ary 1979, or in its orders of 13 October 1978 and 4 April 1979.

*1 See infra pp. 42, 46, 48-51.

** F.g., General Dynamics Corp. v. Selb Manufacturing Co., 481

F.2d 1204, 1212 (8th Cir. 1973), cert. denied, 414 US. 1162

(1974) ; Stonybrook Tenants Ass’n, Inc. v. Alpert, 29 F.R.D. 165,

167 (D. Conn. 1961); United States ex rel. Edelstein v. Brussell

Sewing Machine Co., 3 F.R.D. 87, 88 (S.D.N.Y. 1943).

on unsupported contentions of counsel.” Here, how-

ever, apart from the UTP’s grumbling before the Dis-

trict Court that it had already provided ‘‘enough”’ dis-

covery, the record contains no showing of any cause

or reason—let alone good cause—for terminating dis-

covery in this case.“ Just the opposite: Petitioners

would be entitled to hold depositions even if the trans-

*3 E.g., General Dynamics Corp. v. Selb Manufacturing Co., 481

F.2d 1204, 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162

(1974); Neonex International Ltd. v. Norris Grain Co., 338 F.

Supp. 845, 854 (S.D.N.Y. 1972); Apeo Oil Corp. v. Certified

Transportation, Inc., 46 F.R.D. 428, 431-32 (W.D. Mo. 1969);

Glick v. McKesson & Robbins, Inc., 10 F.R.D. 477, 479 (W.D. Mo.

1950) ; Stankewicz v. Pillsbury Flour Mills Co., 26 F. Supp. 1003,

1004 (S.D.N.Y. 1939).

** At the 13 October 1978 hearing, the UTP’s counsel told the

District Court that

[w]e have not come to your Fonor in terms of seeking pro-

tective orders and the like * * * . I think [discovery] should

terminate and, very frankly, if we are going to receive addi-

tional discovery requests * * * we may have to return to the

Court in order to limit that discovery. We have had a lot of

discovery, it has been expensive * * * . My office has spent

a lot of time in Washington, D.C., looking through records

there as well as here in Minnesota, We are not interested in

going any further.

I would, I guess, urge the Court to consider cutting off

discovery ee

A. 446-47. This emma is not a proper motion for protective

order under Rule 26(c) or 30(d); and, even if it were, it would

be of no importance by itself in supporting such an order. Glick

v. McKesson & Robbins, Inc., 10 F.R.D. 477, 479 (W.D. Mo. 1950).

Moreover, whatever a trial-court’s discretion to enter protective

orders where some cause exists, it has no power to do so where no

cause appears on the record. See Jacobowitz v. Kremer, 7 F.R.D.

110, 111 (S.D.N.Y. 1946): ‘‘The record clearly establishes that no

good cause nor even any cause whatever for refraining from taking

or for limiting the deposition has been shown. * * ® [I]t would be

an abuse of authority to interfere with the deposition being taken

at this stage.’’

actions they intended to investigate had been conducted

or confirmed in writing, and they had access to the

documents.“ How much more persuasive their position

when the UTP has withheld and destroyed documents,

and when its officials and staff-personnel have testified

falsely, evasively, and incompletely with respect to

those documents it did produce. Again, Petitioners

would be entitled to conduct depositions even if the

expected testimony were repetitious of information

gleaned from other sources.” How much more con-

vineing their position when the UTP has deprived

them of evidence through repeated, unjustified re-

fusals to produce documents and to answer questions

candidly. And again, Petitioners would be entitled to

conduct depositions even if the deponents asserted un-

der oath that they had no knowledge of the subject-

matter of the inquiry.” How compelling their position

when the prior testimony of the UTP’s staff-person-

nel establishes both their knowledge and their intent

to deny or conceal that knowledge by any means.” In

** See Morrison Export Co. v. Goldstone, 12 F.R.D. 258, 259

(S.D.N.Y. 1952).

** See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.

1975).

** See Parkhurst v. Kling, 266 F. Supp. 780, 781 (E.D. Pa.

1967) ; Transcontinental Motors, Inc. v. NSU Motorenwerke Aktien-

geselischaft, 45 F.R.D. 37, 37 (S.D.N.Y. 1968) ; Overseas Exchange

Corp. v. Inwood Motors, Inc., 20 F.R.D, 228, 229 (S.D.N.Y. 1956).

* That Petitioners requested the District Court to permit the

re-deposition of several of the UTP’s staff-persons charged with

false or evasive testimony in their first depositions is hardly extra-

ordinary, then; rather, the circumstances necessitate such action if

Petitioners are to enjoy meaningful relief. Contrast McNally v.

Simons, 1 F.R.D. 254, 254-55 (S.D.N.Y. 1940), with A. 327-28;

and see infra note 52.

short, good cause exists for an order compelling the

UTP to disclose what it has withheld, concealed, and

falsified-—not an order rewarding those actions with

a blanket of judicially imposed secrecy at odds with

everything the Federal Rules of Civil Procedure were

intended to accomplish.”

In addition, the District Court misjudged its power

under Rule 34. For even under that Rule as it existed

prior to 1970, with its now-abandoned requirement

that a party show good cause for the production of

documenta, Petitioners would be entitled to the relief

they sought in their motion to extend discovery. A.

27-29. After all, in the face of the UTP’s withholding

of numerous documents within the categories Petition-

ers requested be produced, and of the false, evasive,

and incomplete testimony of its staff-personnel, Peti-

tioners have established the existence of much physical

evidence.” Petitioners have located this evidence in

*® See Banco Nacional de Credito Ejidal v. Bank of America N.T.

& S.A., 11 F.R.D. 497, 499-500 (N.D. Cal. 1951) :

One primary object of the Rules is to provide for a just,

speedy, and inexpensive determination of actions. In contrast,

the construction urged by respondent would result in delay,

expense, and inconvenience. From the record it appears that

over two years have already been consumed in attempting to

get this case to trial. Obstacle after obstacle has been thrown

in the path of fact-finding. It is time to call a halt to such

dilatory tactics. Those who come into the courts must be pre-

pared to be as just with their adversary as they expect the

courts to be with them. Artificialities, delay, obfuscation and

concealment inevitably cast a pall of disrepute over bar and

court alike, and turn the trial of an action into a game of

chance or a contest of wits.

“Compare A. 143-90 with Houdry Process Corp. v. Common-

wealth Oil Refining Co., 24 F.R.D. 58, 62-63, 63-64 (S.D.N.Y.

1959), and contrast with William A. Meier Glass Co. v. Anchor

Hocking Glass Corp., 11 F.R.D, 487, 491-92 (W.D. Pa. 1951);

_ Condry v. Buckeye S8.S. Co., 4 F.R.D, 310, 311-12 (W.D. Pa.

1945).

the UTP’s exclusive possession, inaccessible to them

absent court-order.” Petitioners have explained how

this evidence is necessary to the adequate preparation

of their case, and how without it they are seriously

prejudiced in protecting their constitutional rights.”

And Petitioners have proven that the UTP’s officials

and staff-personnel they deposed were reluctant to

speak freely, or were openly hostile, evasive, or un-

truthful; that those deponents refused to reveal the

contents of many documents discussed in their testi-

mony; that the contents of documents they did de-

scribe are likely inconsistent with their deseriptions;

and that, in general, ascertainment of the true nature

and extent of the UTP’s political involvement is im-

possible without complete access to certain of its files.“

** Compare A. 143-90 with National Utility Service, Ine. v. North-

western Steel and Wire Co., 426 F.2d 222, 225-26 (7th Cir. 1970) ;

and In re Natta, 388 F.2d 215, 219 (3d Cir. 1968), and contrast

with Harkobusie v. General American Transportation Corp., 31

F.R.D. 264, 265 n.2 (W.D. Pa. 1962) ; and Houdry Process Corp.

v. Commonwealth Oil Refining Co., 24 F.R.D. 58, 61-62 (S.D.N.Y.

1959).

** Compare A. 46-80 with Speedrack, Inc. v. Baybarz, 45 F.R.D.

254, 256 (E.D. Cal. 1968); and Roebling v. Anderson, 257 F.2d

615, 620-21 (D.C, Cir. 1958), and contrast with Harkobusic v.

General American Transportation Corp., 31 F.R.D. 264, 266-67

(W.D. Pa. 1962).

“Compare A. 192-323, 326-27 with Southern Ry. v. Lanham,

403 F.2d 119, 127-29 (5th Cir. 1968) ; Zenith Radio Corp. v. Radio

Corp. of America, 121 F. Supp. 792, 795 (D. Del. 1954) ; Goldner

v. Chicago & N.W. Ry. System, 13 F.R.D. 326, 329 (E.D. IIL

1952) ; and Hirshhorn v. Mine Safety Appliances Co., 8 F.R.D. 11,

21, 24 (W.D. Pa. 1948), and contrast with Seuderi v. Boston In-

surance Co., 34 F.R.D. 463, 467-68 (D. Del. 1964) ; Guilford Nat’l

Bank of Greensborp v. Southern Ry., 297 F.2d 921, 926-27 (4th

Cir. 1962); McManus v. Harkness, 11 F.R.D. 402, 408 (S.D.N.Y.

The UTP, conversely, has proven nothing—instead,

confessing its wrongdoing by silence, and attempting

to avoid the consequences of that malfeasance by the

unavailing complaints that Petitioners have “enough’”’

evidence already, and that to produce more would be

‘‘burdensome’’.* Under the present Rule 34, the

UTP must establish good cause for withholding docu-

ments Petitioners requested it produce.” Yet, although

Petitioners have shown good cause for the further

production of documents (albeit unnecessarily); and

although the UTP has not refuted Petitioners’ proof

of its bad faith in discovery (let alone established good

cause for rewarding that bad faith) ; the District Court

nevertheless applied Rule 34 more narrowly than any

court even before 1970—and in a case where its broad-

est application is necessary.“

1951) ; and Hudalla v. Chicago, M., S.P. & P.R.R., 10 F.R.D. 363,

364-65 (D. Minn. 1950).

That the necessity for direct access to the UTP’s files arose

primarily as a res:it of the non-production of documents and the

depositions follawing the District Court’s order of 13 October 1978

is a factor »ecisively militating against its order of 4 April 1979.

See Goosmen v. A. Duie Pyle, Inc., 320 F.2d 45, 50-52 (4th Cir.

1963).

“ Contras: A. 335, 336-37, 338-46, 360-61 with Morales v. Tur-

man, 59 F.R.D. 157, 158 (E.D. Tex. 1972) ; Cameo, Inc. v. Baker

Oil Tools, Inc., 45 F.R.D. 384, 386 (S.D. Tex. 1968); and United

States v. American Optical Co., 39 F.R.D. 580, 586-87 (N.D. Cal.

1966) (Rule 45(d)).

“* E.g., Kotlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76-77

(D. Mass. 1976) ; Zucker v. Sable, 72 F.R.D. 1, 3 (S.D.N.Y. 1975).

** See Morales v. Turman, 59 F.R.D. 157,159 (E.D. Tex. 1972) :

‘*When important civil rights are in issue in complex litigation of

widespread concern, a court must make every effort to enhance

the fact-finding process available to counsel for both sides.’’

Finally, the District Court misunderstood the source

and nature of its power under Rule 37(a). The au-

thority to compel discovery does not license trial-courts

to grant or deny benefactions to favored litigants, as

they choose.” Instead, under the extraordinary cir-

cumstances of this case, it implicates serious issues of

due process of law, as well as the proper application

of the Federal Rules.“ Yet the District Court’s order

of 4 April 1979 reads, in context, as if neither Rule

37(a) nor the Fifth Amendment circumscribes its ac-

tions. Quite the contrary is true, however: Rule 37 dis-

countenances contrived ‘‘lapses of memory’’, evasive

or incomplete answers, or other tactics witnesses use

to frustrate or delay discovery.” How applicable that

Rule here, then, where witness after witness repeat-

edly—and incredibly—‘‘ forgot’’ what he or she and the

UTP did in the area of partisan politics. Again, Rule

37 disallows parties to treat discovery-proceedings as

a contest in devising ruses to conceal the truth.” How

appropriate that Rule here, then, where the UTP used

one subterfuge after another to forestall discovery.

**No judicial power is ‘‘an arbitrary and despotic one, to be

exercised at the pleasure of the court, or from passion, prejudice,

or personal hostility’’. Ez parte Secombe, 60 U.S. (19 How.) 9, 13

(1856) ; Ex parte Bradley, 74 U.S. (7 Wall.) 364, 377 (1868).

* See infra p. 45.

* E.g., Philadelphia Housing Authority v. American Radiator &

Standard Sanitary Corp., 50 F.R.D. 13, 18-19 (E.D. Pa. 1970)

(‘‘[d]iseovery procedures cannot be frustrated by such transparent

sham’’ as ‘‘don’t recall’’ answers), aff'd, 438 F.2d 1187 (3d Cir.

1971) ; Cromaglass Corp. v. Ferm, 344 F. Supp. 924, 927-28 (M.D.

Pa. 1972) ; Braziller v. Lind, 32 F.R.D. 367, 367-68 (S.D.N.Y. 1963).

* £.g., Trans World Airlines, Inc. v. Hughes, 332 F.2d 602,

614-15 (2d Cir. 1964). |

And again, Rule 37 particularly disdains participation

of counsel in schemes to suppress evidence.” How nec-

essary that Rule here, then, where Petitioners exposed

the complicity of ‘‘NEA’s attorneys”’ in a ‘‘cover-up’’.

In short, Rule 37 compels the relief Petitioners re-

quested and the District Court denied, including re-

deposition of those witnesses who testified falsely,

evasively, and incompletely; the appointment of a

master to preside at future depositions; and unim-

peded access to the UTP’s files.”

%! £.g., Shapiro v. Freeman, 38 F.R.D. 308, 313 (S.D.N.Y. 1965),

quoted with approval in Palma v. Lake Waukomis Development

Co., 48 F.R.D. 366, 369 (W.D. Mo. 1970) :

{The attorney] had no right whatever to impose silence or to

instruct the witnesses not to answer * * ® .

lawyers have been acting in utmost bad faith. * * * [T]hey

willfully torpedoed defendants’ attempt to take a deposition

ordered by this court.

The Federal Rules of Civil Procedure were designed as an

affirmative aid to substantive justice, and those who choose to

read them restrictively do so at their peril, It is time that

depositions be conducted by members of the bar in a coopera-

tive manner, in accordance with both the letter and spirit of

the rules * * ® . It is clear to us that plaintiffs’ attorney has

no conception of his obligation to observe the rules ‘‘as an

officer of the court’’ or otherwise. Rather, he appears to be

bent on concealing vital facts or, at best, waging a war of

delay, expense, harassment and frustration. There is no justi-

fication for his conduct, no basis at all for his instructing the

deponents not to answer.

*? See Macrina v. Smith, 18 F.R.D. 254, 258 (E.D. Pa. 1955),

and compare with A. 29, 327-28.

** See Shapiro v. Freeman, 38 F.R.D. 308, 313 (S.D.N.Y. 1965),

and compare with A. 29, 327-28.

* See A. 28-29, 326-27, and contrast with. Budget Rent-A-Car of

Missouri, Ine. v. Hertz Corp., 55 F.R.D. 354, 356-57 (W.D. Mo.

1972), which indicates that Petitioners have willingly assumed a

discovery-burden the UTP could not have imposed upon them.

The interpretation of Federal Rules of Civil Proce-

dure 16, 26, 30, 34, and 37 implicit in the District

Court’s order of 4 April 1979 so offends the intend-

ment of those Rules that this Court should intervene

now—not only to do justice to Petitioners while there

is still time,” but also to forefend error and uncertain-

ty in the application of the Rules to other cases.

II. Besides rewarding the United Teaching Profession’s con-

tempt for Federal Rules of Civil Procedure 26, 30, and 34

in this case, the District Court’s sanction of its “stone-

walling” and “covering-up” will encourage other unscrupu-

lous parties to flout those Rules at every opportunity.

The District Court’s misapplication of Federal Rules

of Civil Procedure 16, 26, 30, 34 and 37 comes at an

inopportune and dangerous moment. Mr. Justice Pow-

ell recently expressed understandable cuncern over

‘the widespread abuse of discovery that has become

a prime cause of delay and expense in civil litigation’’,

and noted that ‘‘discovery techniques and tactics have

become a highly developed litigation art—one not in-

frequently exploited to the disadvantage of justice’’.”

The evidence on which this statement rests supports

strict enforcement of the limitations in the federal

discovery-rules where a party attempts to extend dis-

covery oppressively.” But, by a parity of reasoning,

it counsels an equally rigorous enforcement of those

rules where a party attempts to frustrate discovery

illegally. The abstraction that ‘‘extensive discovery is

an abuse”, however, although true in particular in-

55 See infra pp. 48-51.

_ % Herbert v. Lando, —— U.S, —, —, 47 U.8.L.W. 4401, 4407

(17 Apr. 1979) (concurring opinion).

5? See id. at ——, 47 U.S.L.W. at 4407 (opinion of the Court).

stances, may become a rationalization against discovery

in general—to the detriment of litigants, such as Pe-

titioners, for whom comprehensive discovery is essen-

tial to protect their constitutional rights. Litigants

such as NEA, MEA, MCCFA, and IMPACE—for

whom comprehensive discovery means defeat—may

fashion a new litigation art—based on ‘‘stonewalling’”’

and ‘‘covering-up’’, and designed to dupe busy trial-

courts into curtailing discovery without good cause and

to the disadvantage of justice.

The District Court’s order of 4 April 1979 provides

precedent for the most perverse developments of that

kind. First, it rewards the UTP for employing tech-

niques of concealment and suppression of evidence that

have long been condemned as widespread abuses, that

have caused and will cause extensive delay and ex-

pense in this case, and that have prejudiced Petition-

ers’ fundamental] liberties.“ Second, the order shows

58 On the types of discovery-abuses encountered in complex liti-

gation, see, e.g., Freeman, ‘‘The Attorney-Corporate Client Privi-

lege: An Obstacle to the Pursuit of Truth’’, Litigation, Vol. 2, No.

3, at 1-2 (Spring 1976) :

Obtaining facts through corporate witnesses is always a dif-

ficult task, especially when a significant amount of time has

elapsed between an event in question and the examination of

those witnesses at depositions or at trial. Established programs

within corporations for the periodic destruction of records

eliminate one important source of evidence. Without the pos-

sibility of being impeached by written correspondence, memo-

randa or other documents, witnesses can safely retreat behind

a lack of recollection.

* * * [A]ccess to earlier recorded recollection is crucial to

effective discovery. For practical reasons, discovery * * * may

not occur until three to five years after the conspiracy has

been unmasked, and even more years after the crucial events

and conversations that were the inception of the illegal scheme.

The failing memories of conspirators—real or feigned—pre-

vent meaningful inquiry into secret agreements and conduct

that were the basis of the conspiracy.

The barriers to getting hard evidence * * * are formidable;

that at least one trial-court is willing to terminate dis-

covery suc sponte if the parties from whom discovery

is sought can give enough untruthful testimony, with-

hold enough documents, consume enough time—and

brazenly enough defend their wrongdoing with the no-

tion that the Federal Rules entitle the parties seeking

discovery only to false and evasive testimony and in-

complete production of documents.” And third, in con-

junction with this Petition, the order indicates how

procedurally difficult and costly is the aggrieved par-

ties’ only efficacious means to relief.

The District Court’s order of 4 April 1979 is self-

defeating, because it leaves the first trial (yet to be

had) necessarily abortive in nature, and sets the stage

for appeal to this Court, reversal and remand for fur-

ther discovery, and a second trial. This result alone is

perhaps sufficient to warrant an extraordinary writ

here.” How necessary such a writ, then, when the Dis-

trict Court’s order also provides precedent for other

trial-courts in other cases practically to nullify the

discovery-rules at the behest of the very parties against

whom those rules demand unrelenting enforcement.”

discovery may be frustrated by well-rehearsed, false and eva-

sive testimony. * * * ™n these circumstances, the only available

record of the facts is contained in statements taken from em-

ployees * * *. If these reiaain locked in the * * ® files, the

truth may never be ascertained.

°° Such is the sole defense the UTP proffered to the District

Court. See A. 360-61, 404.

*° See Padovani v. Bruchhausen, 293 F.2d 546, 547-48 (2nd Cir.

(1961). See infra pp. 46, 48-51.

*: See Los Angeles Brush Manufacturing Corp. v James, 272 U.S.

701, 706-08 (1927) ; Sanderson v. Winner, 507 F.2d 477, 479 (10th

Cir. 1974), cert. dented sub nom. Nissan Motor Curp. v. Sanderson,

421 U.S. 914 (1975).

Indeed, should this Court deny Petitioners relief,

what teaching will the inferior federal courts and the

trial-bar perceive other than that the Federal Rules

of Civil Procedure apply only to those parties too

timorous to scout them? How compelling an extraordi-

nary writ in this case, therefore, if only to admonish

lower courts and the bar that concealment, guile, sham,

and obstruction find no encouragement or aid in either

the Rules of their enforcement by this Court.

Ill. The District Court had no power to terminate Petitioners’

discovery once they exposed a scheme on the part of the

United Teaching Profession to give false and incomplete

testimony and illegally to withhold physical evidence.

That American courts lack authority to encourage,

condone, or reward litigants’ suppression of evidence

should be self-evident ; yet here, the District Court pro-

ceeded as if the opposite were true. Its order of 4

April 1979 thus falls within that category of ‘‘ex-

tremely bad judicial decision[s]’’ that are ‘‘so egre-

giously erroneous” as to constitute an usurpation of

power.”

As detailed in Part I.,” the District Court’s order is

inconsistent with any tenable interpretation of Fed-

eral Rules of Civil Procedure 16, 26, 30, 34, and 37, and

therefore appropriately correctable by extraordinary

writ.“ The basic purpose of the Rules, after all, is to

administer justice through fair trials—which compels

62 In re Estelle, 516 F.2d 480, 488 (5th Cir. 1975) (Godbold, J.,

concurring), cert. denied, 426 U.S. 925 (1976).

*’ Supra pp. 27-40.

** See McDonnell Douglas Corp. v. United States District Court,

523 F.2d 1083, 1087 (9th Cir. 1975), cert. denied sub nom. Flana-

gan v. McDonnell Douglas Corp., 425 U.S. 911 (1976).

the conclusion that judicially imposed impediments to

the development, presentation, and determination of

facts should be avoided wherever possible, not maxi-

mized as the District Court has done here.” To be

sure, in ordinary cases, trial-courts should police their

dockets to expedite litigation. This case, however, in-

volves complex facts concerning the political activities

and intentions of a huge, nationwide organization over

the last eight years, together with the UTP’s startling

efforts to frustrate Petitioners’ discovery of those

facts. The District Court should have considered these

unique circumstances, particularly in so far as they

became known only after its order of 13 October 1978."

Instead, it ignored them, in deference to its own undis-

closed purposes.”

** Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373-74 (1966) ;

IBM Corp. v. Edelstein, 526 F.2d 37, 40-41 (2d Cir. 1975).

** See Freehill v. Lewis, 355 F.2d 46, 48-49 (4th Cir. 1966).

*’ At the hearing of 2 February 1979, the Honorable Donald D.

Alsop told the parties that :

[t]here is no way to describe the reaction, I guess, to what

has transpired since {the hearing and order of 13 October

1978] in the sense that obviously the case has taken an entirely

different turn based upon everything I have tried to accom-

plish over the last three years * * °,

I do not propose to hear these motions. They are going to

be heard by a three-judge panel.

A. 460. The District Court held no hearing on Petitioners’ motion

at all, however. Neither did it ever explain how what it had ‘‘tried

to accomplish over the last three years’’ justified denial of Peti-

tioners’ request for relief from the UTP’s ‘‘cover-up’’.

Perhaps the Court was referring to a desire to move the case to

trial. Yet, since the UTP’s conduct has made extension of dis-

covery imperative if Petitioners are to secure a full factual record,

the Court’s inclination to proceed with dispatch hardly rationalizes

sanctions against the aggrieved parties and rewards for the mal-

factors. See Fowler v. Wirtz, 34 F.R.D. 20, 23-24 (S.D. Fla. 1963).

Whatever these purposes may be, they cannot sup-

port the District Court’s termination of discovery, be-

cause of the repugnance of its order of 4 April 1979

to the Due Process Clause of the Fifth Amendment.”

In criminal] prosecutions, for example, the government

may not itself solicit or use perjured testimony,” de-

iberately misrepresent the truth,” rely on incomplete

r misleading facts,” allow false evidence to go uncor-

rected when it appears,” or suppress material evidence,

favorable to his case, that a defendant has requested

be produced.” The principles of due process would be

self-contradictory if they denied government the power

to do these things directly, yet licensed it, through

judicial ‘‘discretion’’, to blink the same wrongdoing by

civil litigants under the Federal Rules of Civil Proce-

dure—particularly where those Rules provide the sole

means by which Petitioners can assert their federal

constitutional and statutory rights in the national

courts. Yet only such an incoherent gloss to the Due

Process Clause can sustain the District Court’s order

of 4 April 1979.

68 See Western Electric Co., Inc. v. Stern, 544 F.2d 1196, 1198-

99 (3d Cir. 1976).

*° F.g., Aleorta v. Texas, 355 U.S. 28, 30-32 (1957); White v.

Ragan, 324 U.S. 760, 763-64 (1945) ; Mooney v. Holohan, 294 U.S.

103, 112-13 (1935).

7 Miller v. Pate, 386 U.S. 1 (1967).

™ Moore v. Illinois, 408 U.S. 786, 807-10 (1972) (Marshall,

Douglas, Stewart, and Powell, JJ., dissenting in part).

™ Napue v. Illinois, 360 U.S. 264, 269 (1959).

78 Moore v. Illinois, 408 U.S. 786, 794-95 (1972) ; Brady v. Mary-

land, 373 U.S. 83, 86-88 (1963).

™* Compare Lee v. Habib, 424 F.2d 891, 901-02 (D.C. Cir. 1972),

with Bodie v. Connecticut, 401 U.S. 371 (1971).

46 .

Even more revealing of the egregiously erroneous

nature of that order is its paradoxical result in penal-

izing Petitioners for having suffered and exposed, and

rewarding the UTP for having conceived and perpe-

trated, a fraud upon Petitioners and the judicial sys-

tem. The UTP’s illegal actions will prevent Petition-

ers, despite their own diligence, from fully presenting

their case. Those actions, therefore, would compel a

second trial in this action, let alone complete discovery

to guarantee the fairness of the first trial.” Indeed,

Petitioners would be entitled to a new trial even if the

UTP had not deliberately and maliciously concealed

the truth,” or even if the false and evasive testimony

of its officials and staff-personnel had arguably little

weight on the trial-court’s judgment." How compelling

their right to relief, then, where the uncontroverted

evidence exposes a deliberately planned and carefully

executed scheme to defeat the administration of jus-

tice.” Conversely, how repellant the aid and comfort

78 See, e.g., Toledo Scale Co. v. Computing Scale Co., 261 U.S.

398, 420-21 (1923); United States v. Throckmorton, 98 U.S. 61,

65-66 (1878); Fiske v. Buder, 125 F.2d 841, 849 (Sth Cir. 1942).

"®See Bros Ine. v. W.E. Grace Manufacturing Co., 351 F.2d

208, 210-11 (5th Cir. 1965), cert. denied, 383 U.S. 939 (1966).

"t See Peacock Records, Inc. v. Checker Records, Inc., 365 F.2d

145, 147 (7th Cir. 1966), cert. denied, 385 U.S. 1003 (1967);

Atchison, T. & S.F. Ry. v. Barrett, 246 F.2d 846, 849 (9th Cir.

1957).

*® See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.

238, 245-47 (1944). The involvement of ‘‘NEA’s attorneys’’ in

this scheme raises particularly serious issues. Compare and con-

trast Petry v. General Motors Corp., Chevrolet Division, 62 F.R.D.

357, 358-61 (E.D. Pa. 1974).

Hazel-Atlas Glass Co. explodes the UTP’s recurrent argument

that Petitioners sought relief ‘‘too late’’. E.g., A. 335, 346-47,

348-51, 356, 361-62. As this Court said in that case,

[w]e cannot easily understand how, under the admitted facts,

the District Court has given the UTP’s ‘‘cover-up’’,

when Petitioners’ unrefuted demonstration supports

the harshest of sanctions under Rule 37, not tacit

approbation.”

In short, no source of judicial power under the Fed-

eral Rules of Civil Procedure or the United States

Constitution subtends the District Court’s order of 4

April 1979. Undoubtedly, the UTP is unwilling to make

full discovery in this case; but neither that reluctance,

nor a judicial fiat such as the latter order, can deprive

Petitioners of their right, founded on the necessities

of litigation and the requirements of justice, to the

evidence necessary to vindicate their constitutional

freedoms in court.”

Hazel should have been expected to do more than it did to

uncover the fraud. But even if Hazel did not exercise the

highest degree of diligence, Hartford’s fraud cannot be con-

doned for that reason alone, * * * [T]ampering with the

administration of justice in the manner indisputably shown

here involves far more than an injury to a single litigant. It

is a wrong against the institutions set up to protect and safe-

guard the public, institutions in which fraud cannot com-

placently be tolerated consistently with the good order of

society. Surely it cannot be that preservation of the integrity

of the judicial process must always wait upon the diligence

of litigants. The public welfare demands that the agencies of

public justice be not so impotent that they must always be

mute and helpless victims of deception and fraud.

322 U.S. at 246. Accord, Estate of Murdoch v, Pennsylvania, 432

F.2d 867, 870 (3d Cir. 1970).

"® See, e.g., United States v. Moss-American, Inc., 78 F.R.D. 214,

215-17 (E.D, Wis. 1978).

* See Ex parte Uppercu, 239 U.S. 435, 439-40 (1915) ; Olympie

Refining Co. v. Carter, 332 F.2d 260, 264-66 (9th Cir.), cert. denied,

379 U.S. 900 (1964).

IV. Absent immediate intervention by this Court, the District

Court’s order of 4 April 1979 will irreparably prejudice

the vindication of Petitioner’s constitutional freedoms.

Irreparable injury to Petitioners is an unavoidable

consequence of the District Court’s usurpation of

power in prematurely terminating discovery of the

UTP’s political activities. The District Court’s order

of 4 April 1979 forecloses relief through pre-trial in-

vestigations under the discovery-rules." In addition, a

trial under the present circumstances will likely prove

useless.”

"Contrast Kerr v. United States District Court, 426 U.S. 394,

404.06 (1976); Southern California Theatre Owners Ass’n v.

United States District Court, 430 F.2d 955, 956 (9th Cir. 1970).

The District Court denied Petitioners’ motion to reconsider that

order. A. 471-72. Thus the Court has provided the UTP with an

opportunity to purge its files of incriminating documentation, to

coach potential witnesses, and to prepare new subterfuges to defeat

exposure of its political involvement.

** Although not dispositive, the uselessness of a trial is a con-

sideration to be weighed in the exercise of supervisory power under

the All Writs Act. See Ez parte Skinner & Eddy Corp., 265 U.S.

86, 95-96 (1924).

Such a consideration is peculiarly apt here, in light of the Dis-

trict Court’s manifest hostility to a trial, as expressed at the

hearing of 2 ebruary 1979:

Tue Court [per the Honorable Donald D. Alsop]: Help

me a how you feel I get the facts before the three-judge

pan

Mr. Micter [counsel for the UTP]: Judge, if we can’t do

it——

Tue Court: You say you can’t. Tell me how you propose

to do it?

Mr. Miter: If we cannot do it by way of stipulation of

facts I would propose that we are either going to have some

At trial, Petitioners will be unable to compel attend-

ance of those witnesses who work in the UTP’s na-

tional headquarters in Washington, D.C., and who tes-

tified falsely or evasively in depositions.” Arguably,

Petitioners might be able to require the UTP to pro-

duce various documents pursuant to a subpoena duces

tecum; but the attitude regarding document-produc-

tion under Rule 34 embodied in the District Court’s

order of 4 April 1979 renders this possibiJity slim.”

supplemental live testimony * * * , that failing a stipulation

of facts what can we do besides having a full-blown trial.

Tue Court: I can tell you you are not going to have a

full-blown trial, I can tell you that.

Mr. Miter: That is my understanding.

THe Court: All of you dispossess yourselves of the idea that

there is going to be testimony in this case because based on

my informal conversations with the other judges, I can tell

you that is not going to happen.

A. 464-65, An extraordinary writ, of course, is the remedy of choice

where a jury-trial, such as Petitioners demanded in their amended

complaint, is illegally denied. Beacon Theatres, Inc. v. Westover,

359 U.S. 500, 501-11 (1959) ; Ez parte Peterson, 253 U.S. 300, 305-

06 (1920); Ex parte Simons, 247 U.S. 231, 239-40 (1918) ; In re

Zweibon, 565 F.2d 742, 745-46 (D.C. Cir. 1977) ; Lee Pharmaceu-

ticals v. Mishler, 526 F.2d 115, 116-17 (2d Cir. 1975) ; Tights, Inc.

v. Stanley, 441 F.2d 336 (4th Cir. 1971), cert. denied, 404 U.S.

852 (1971); Bruce v. Bohanon, 436 F.2d 733, 735-36 (10th Cir.),

cert. denied, 403 U.S. 918 (1971) ; see Thompson v. Board of Educ.,

476 F.2d 676, 677-78 (5th Cir. 1973) (‘‘[w]hen this case was set

for trial * * * the parties were informed that there would be no

trial in the sense of hearing witnesses or taking evidence’’).

83 See Federal Rule of Civil Procedure 45(e).

% Cf. 4A Moore’s Federal Practice {| 34.06, at 34-44 & nn.18-19

(1978). That Petitioners could subpoena documents at trial, how-

ever, does not militate against the relief they seek here. See Grey-

hound Lines, Inc. v. Miller, 402 F.2d 134, 140-45 (8th Cir. 1968).

In any event, Petitioners need, not documents alone,

but documents explained by the candid testimony of

those officials and staff-personnel of the UTP knowl-

edgeable about the activities the documents record. Yet,

without particular documents to force them into ad-

missions, such witnesses from the UTP as Petitioners

can summon to trial will have no more incentive to

testify candidly than did previous deponents.” And

without the clarifying testimony of particular individ-

uals, such documents as Plaintiffs can obtain here-

after will be less probative than they could be.

Furthermore, the success of their constitutional

claims depends on the quantity, as well as the quality,

of evidence Petitioners adduce. If Petitioners prove

that political involvement is essential to the achieve-

ment of the UTP’s goals, they will establish its dis-

qualification, under the First and Fourteenth Amend-

ments, to impose itself as their “‘spokesman’”’ or ‘‘spon-

sor’’ under color of Minnesota law.“ The conclusion

that the UTP is a political-action organization, though,

rests upon the totality of the circumstances surround-

ing its activities and intentions.” And the very concept

of ‘“‘totality’’ implies that the sheer mass of proofs

available is important.

If the UTP’s “cover-up” prevents a jury from find-

ing that it is a political-action organization, the Dis-

trict Court must enter judgment against Petitioners.

On appeal, this Court will inevitably reverse and re-

mand—not, however, for another trial that could ac-

** A. 195-97 & n.89, 249-51 & n.106.

“See Elrod v. Burns, 427 U.S. 347, 355 (1976) (opinion of

Brennan, J.).

* Vieira, supra note 10, 27 DePaul L. Rev. at 344-49.

complish nothing, but for further discovery to purge

the case of the UTP’s pre-trial wrong-doing. Whether

that discovery succeeds, though, will depend vpon the

fortuitous availability of witnesses and the extent of

their detailed recall of events that transpired years

before, and upon the existence of documents that Pe-

titioners know the UTP is now destroying.” If its al-

ready exposed scheme of suppressing evidence por-

tends future events, by the time discovery begins again

on remand after appeal to this Court, the UTP will

have perfected its “cover-up” and forever precluded

Petitioners from collecting the evidence to which they

are entitled.

This result alone justifies the issuance of an ex-

traordinary writ now, before it is too late.”

V. By denying Petitioners the opportunity to develop a com-

plete factual record in support of their constitutional

claims, the District Court’s order of 4 April 1979 will

defeat this Court’s appellate jurisdiction over those claims.

The Court of Appeals for the Eighth Circuit held

that Petitioners’ amended complaint raises substantial

constitutional questions.” And this Court has repeat-

eily premonished litigants that constitutional issues

are almost never ripe for decision absent a detailed

** A. 190-92.

* See Pfizer v. Lord, 456 F.2d 545, 547-48 (8th Cir. 1972) ;

United States v. Hemphill, 369 F.2d 539, 543 (4th Cir. 1966) ;

Atlass v. Miner, 265 F.2d 312, 313 (7th Cir. 1959), aff'd, 363 U.S.

641 (1960); cf. De Beers Consolidated Mines, Ltd. v. United

States, 325 U.S. 212, 216-17 (1945).

* Knight wv. Alsop, 535 F.2d 466, 469-70 (8th Cir. 1976).

factual record.” These decisions mandate complete dis-

covery in this case. Furthermore, what constitutes

complete discovery under the peculiar circumstances

here is a matter for Petitioners, not the trial-court, to

decide.” The District Court, however, has exceeded its

authority under the Federal Rules of Civil Procedure,

and ordered that Petitioners have less-than-complete

discovery notwithstanding their unrefuted demonstra-

tion of the UTP’s suppression of evidence.

The potential effect of the District Court’s order of

4 April 1979 is two-fold: First, if it precludes a jury

from finding that the UTP is a political-action orga-

nization, the order will foreclose immediate appellate

review by this Court of the fundamental constitutional

issue of whether, consistently with the First Amend-

ment, such an organization can impose itself as the

‘“spokesman’”’ or ‘‘sponsor”’ of dissenting faculty-mem-

bers in a public institution of higher education. Sec-

ond, even after this Court reverses a trial-court judg-

ment against Petitioners, and remands for further dis-

covery and factual findings, the order may still defeat

appellate review of the merits by affording the UTP

sufficient time to perfect its ‘cover-up’ through de-

struction of documents and coaching of witnesses.

The potential frustration of this Court’s exclusive

appellate jurisdiction by the District Court’s order of

4 April 1979, then, presents a ciassic situation for in-

" E.g., Wheeler v. Barrera, 417 U.S. 402, 426-27 (1974) ; Socialist

Labor Party v. Gilligan, 406 U.S. 583, 586-87 (1972) ; Cogwill v.

California, 396 U.S. 371, 372 (1970) (Brennan and Harlan, JJ.,

concurring) ; Shaffer ¥. Heitner, 433 U.S. 186, 220-22 (1977) (Bren-

nan, J., concurring and dissenting).

™ See Dennis v. United States, 384 U.S. 855, 873-75 (1966).

tervention by extraordinary writ.” Petitioners, after

all, are not requesting this Court to review the consti-

tutional merits of their case now—but instead to re-

move obstructions the District Court has imposed so

that they can develop the factual record necessary for

this Court to address the merits hereafter.”

In sum, material evidence exists within the exclu-

sive control and knowledge of the UTP, its officials,

staff-personnel, and attorneys. Throughout the course

of this litigation, the UTP has illegally withheld or

falsified evidence. And although Petitioners have ex-

posed the UTP’s wrongdoing, without refutation on its

part, the District Court has sanctioned that malfeas-

ance anyway through its order of 4 April 1979. That

order, however, is inconsistent with any tenable inter-

pretation of Federal Rules of Civil Procedure 16, 26,

30, 34, and 37, or of the Fifth Amendment to the

United States Constitution, and exceeds any trial-

court’s authority to limit discovery. Furthermore, if

* See United States v. United States District Court, 334 U.S.

258, 263 (1948); Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25

(1943) ; United States v. Beatty, 232 U.S. 463, 467 (1914) ; Me-

Clelland v. Carland, 217 U.S. 268, 280 (1910); Colonial Times,

Inc. v. Gasch, 509 F.2d 517, 525-26 (D.C. Cir. 1975). As the Cir-

cuit Court said in Colonial Times, Inc.,

resolution of this issue of discovery may be significant to the

particular case under review. The availability of depositions

District Court for decision and to this Court for review. If

the record is inadequate, as it seemingly would be, then the

[discovery] issue could well be controlling in the litigation.

are often collateral to the litigation and thus lost to appellate

review in fact if not in theory.

* Compare and contrast Pacific Union Conference of Seventh-

Day Adventists v. Marshall, 434 U.S. 1310, ——, 98 S. Ct. 2, 4

(1977) (Rehnquist, Circuit Justice).

not vacated, the order will irreparably injure Peti-

tioners by denying them evidence necessary to the vin-

dication of their First-Amendment liberties; will de-

feat this Court’s exclusive appellate jurisdiction over

a constitutional issue of substantial consequence and

public interest; and will encourage wholesale disre-

gard of the discovery-rules by every civil litigant with

something to hide and the temerity to hide it. Under

these circumstances, therefore, an extraordinary writ

from this Court is necessary. :

PRAYER FOR RELIEF

On the basis of the foregoing, Petitioners pray that

this Court issue an extraordinary writ in the nature

of mandamus and prohibition, commanding the Hon-

orable Gerald W. Heaney, Ear] R. Larson, and Don-

ald D. Alsop, United States Circuit and District

Judges, respectively, sitting as a three-judge United

States District Court in the District of Minnesota,

A. To vacate their order of 4 April 1979;

B. To vacate the order of 13 October 1978 is-

sued by the Honorable Donald D. Alsop; and

C. To order that Petitioners have the discovery

they requested in their Motion to Rescind the

Court’s Order of 13 October 1978, made before the

three-judge District Court and denied in its order

of 4 April 1979, together with such further dis-

covery and other relief as may be warranted un-

der the circumstances then prevailing.

Respectfully submitted,

EpwWIN VIEIRA, JR.

12408 Greenhill Drive

Silver Spring, Maryland 20904

JOHN J. FoGarty

8316 Arlington Boulevard

Fairfax, Virginia 22038

Attorneys for Petitioners

Of Counsel:

RAYMOND J. LAJEUNESSE, JR.

8316 Arlington Boulevard

Fairfax, Virginia 22038

16 July 1979

VERIFICATION OF COUNSEL

Edwin Vieira, Jr., being first duly sworn, deposes

that he is counsel for Petitioners herein; that he has

read the foregoing Petition for Extraordinary Writ;

and that, tc the best of his information and belief, the

facts therein stated are true. !

Epwin VIE, JR.

Sworn and subscribed to before me this sixteenth day

of July, 1979.

Norary Pvusuic

My Commission expires

;

CERTIFICATE OF SERVICE

I hereby certify that, pursuant to Rules 31(1), 33

(1), and 36(1) of the Rules of this Court, I have served

three copies of Petitioners’ Motion for Leave to File

Petition for Extraordinary Writ, Petition for Ex-

traordinary Writ, and Appendices on each of the fol-

lowing Respondents or Counsel for Respondents, by

mailing said copies to the addresses listed below, first-

class postage-prepaid priority mail.

The Honorable Gerald W. Heaney

The Honorable Ear] R. Larson

The Honorable Donald D. Alsop

c/o Mr. Gerald Berquist,

Chief Deputy Clerk

United States District Court

514 United States Court House

Minneapolis, Minnesota 55401

Barbara Lindsey Sims, Esq.

Special Assistant Attorney General

515 Transportation Building

St. Paul, Minnesota 55155

Donald J. ering oom,

Special Assistant ttorney General

303 Capitol Building

550 Cedar Avenue

St. Paul, Minnesota 55155

Eric Miller, ~. , "

oer olff, Foster,

d and Donnelly

1700 National Bank Building

St. Paul, Minnesota 55101

EpWIN VIEIRA, JR.

12408 Greenhill Drive

Silver Spring, Maryland 20904

Attorney for Petitioners

Sens this sixteenth day of July, 1979.

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.