Ellsberg v. Mitchell, Civ. A. No. 1879-72.

• Decision Date: 24 January 1973
• Docket Number: Civ. A. No. 1879-72.
• Citation: 353 F. Supp. 515
• Parties: Daniel ELLSBERG et al., Plaintiffs, v. John N. MITCHELL et al., Defendants.
• Court: U.S. District Court — District of Columbia

353 F. Supp. 515

Daniel ELLSBERG et al., Plaintiffs, v. John N. MITCHELL et al., Defendants.

Civ. A. No. 1879-72.

United States District Court, District of Columbia, Civil Division.

January 24, 1973.

David Rein, Forer and Rein, Washington, D. C., for plaintiffs.

A. William Olson, Asst. Atty. Gen., Robert L. Keuch, Benjamin C. Flannagan, Attys., Internal Security Div., Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

FLANNERY, District Judge.

Daniel Ellsberg and Anthony Russo are on trial in federal court in California for publishing what have become known as the Pentagon Papers.¹ The trial began January 17, 1973, and is expected to take three or four months. During pretrial proceedings the Government disclosed that electronic eavesdropping had occurred, but the judge refused to compel disclosure of the intercepted communication because it was not related to the defendants on trial. The matter before this court is a civil action brought under Title III of the Omnibus Crime Control and Safe Streets Act of 1968² which provides a remedy for a person whose communication has been intercepted by illegal electronic eavesdropping.³ On October 17, 1972, the Government moved to stay all proceedings in this civil action until the termination of the criminal trial in California.⁴ That motion is presently before this court.

During pretrial proceedings in the criminal case, the presiding judge, the Honorable Wm. Matthew Byrne, Jr., required the Government to state whether it had conducted electronic surveillance which possibly could relate to the case against Ellsberg and Russo. The Government denied that any defendant had been overheard, but admitted that one of the defense attorneys or consultants had been overheard in a call made from a place under surveillance.⁵ The Government submitted the surveillance record in camera for the judge to determine whether either defendant had standing to contest the legality of the surveillance. Since neither defendant had been overheard, the judge determined they had no standing to object on fourth amendment grounds. Defendants argued that they had standing under their sixth amendment right to counsel because the Government had overheard a conversation of one of the defendants' attorneys or consultants. After examining the surveillance record in camera, Judge Byrne concluded that defendants had no standing on sixth amendment grounds because "the statement intercepted on a single date in question regards an event that is utterly without significance or relation in any way to this case. Nothing in the intercepted communication could conceivably come within the attorney-client privilege."⁶ Accepting the district court's finding that the intercepted communication was irrelevant to the criminal prosecution, the United States Court of Appeals for the Ninth Circuit affirmed the decision that defendants lacked standing to challenge the legality of the surveillance.⁷

On September 19, 1972, plaintiffs instituted this action for money damages under 18 U.S.C. § 2520 (1970)⁸ alleging that the electronic surveillance had been conducted illegally. There are two groups of plaintiffs in this civil action: the defendants in the criminal trial (Ellsberg and Russo) and their attorneys and consultants.⁹ Defendants in this action are the heads of all government agencies which may have conducted electronic surveillance against plaintiffs.¹⁰

Concerned that plaintiffs will use the broad civil discovery procedures to discover information which is unavailable to them in the criminal case, the Government seeks a stay of all proceedings in the civil action until completion of the criminal trial in California. In support of its motion, the Government argues that this civil action should be stayed to avoid interference with the criminal case. It cautions that a ruling by this court may conflict with a ruling by the court in California and that publicity from this case may influence the unsequestered jury in the criminal case. Moreover, it points out that plaintiffs' cause of action will not be affected significantly by a stay of the civil proceedings because the surveillance record will be preserved for future examination.

In determining whether to stay a civil action, the court must balance the competing interests of the parties.¹¹ However, since a plaintiff has the right to prosecute his cause of action without unnecessary delay, the initial burden must be on the defendant applying for a stay to demonstrate a need, however slight, which justifies a delay in the proceedings. Otherwise, any defendant could obtain a stay merely by showing that the delay would not harm plaintiff's cause of action. Only after the applicant for a stay has carried this initial burden must the court balance the competing interests of the parties.¹² Even in cases of extraordinary public moment, the individual will not be required to submit to delay unless the Government demonstrates that "the public welfare or convenience will thereby be promoted."¹³

In the present case the Government has failed to establish any real need for a stay of all proceedings. This court intends to avoid any possibility of conflict with the pending criminal trial, but the Government has not demonstrated how the proceedings in this civil case could interfere with the trial of the criminal case. No concrete possibility of interference exists because the intercepted communication has been found to be "utterly without significance or relation in any way" to the criminal case. Indeed, the Government must recognize the inconsistency of its position. In the criminal case the Government contended that the intercepted communication was completely unrelated to the defendants on trial. In the case before this court, however, the Government contends that the intercepted communication is so closely related to the criminal case that disclosure of its contents would jeopardize the criminal trial, but it fails to state any facts which support such a conclusion.

The present case will not require this court to decide any issue which has been or will be decided in the criminal trial. This case focuses on the legality of the surveillance. Judge Byrne ruled that the defendants in the criminal trial had no standing to challenge the legality of the surveillance. He also ruled that the attorneys and consultants could not challenge the legality of the surveillance, even though the Government admitted overhearing an attorney or consultant, because their rights were not in issue in the criminal trial.¹⁴ Thus, the issue presented in the present case cannot be raised in the criminal trial.¹⁵ Unable to litigate the legality of the surveillance in the criminal case, the attorneys and consultants seek civil review in this court as provided by statute.

Attempting to demonstrate some possibility of interference with the criminal case, the Government contends that these civil proceedings will require disclosure of the intercepted communication and that disclosure will interfere with the criminal trial. However, it is unlikely that the present case will necessitate disclosure because the legality of the surveillance does not depend on the content of the intercepted communication.¹⁶ The issue of the legality of the surveillance will require this court to examine the authorization for the wiretap, but information concerning the authorization can be obtained without requiring disclosure of the conversations which were overheard. Although the identity of the person who was overheard may have to be disclosed, the Government has not shown how such disclosure could interfere with the criminal trial.

Even if it becomes necessary to disclose the contents of the intercepted communication, it is not apparent how this disclosure could jeopardize the criminal trial. Judge Byrne determined that the intercepted communication is "utterly without significance or relation in any way" to the criminal case. Information concerning a defense attorney which is unrelated to the defendants on trial would not have an appreciable effect on the jury. And since the criminal defendants have joined as plaintiffs in the civil action, they cannot complain if their rights in the criminal trial are jeopardized by the civil action.

No immediate harm will result from allowing this case to go forward and any danger which develops in the future can be prevented at that time. The proceedings in this case, particularly discovery proceedings, will be closely monitored by the court. The Government remains free to seek protective measures when and if it can demonstrate some possibility of interference with the criminal trial.¹⁷

Denial of the requested stay in the present case is consistent with the decision in Dellinger v. Mitchell,¹⁸ a case which resembles the situation confronting this court.¹⁹ In that case, the court of appeals reversed a stay order because the stay (a) was applicable to civil plaintiffs who were not criminal defendants, and (b) persisted until completion of all appellate and remand proceedings in the criminal case.²⁰ Here, as in Dellinger, plaintiffs include parties who are not defendants in the criminal trial. However, unlike in Dellinger, the Government requests a stay only for the duration of the criminal trial, not the appellate and remand proceedings.

Although in dictum the Dellinger court assumed that the circumstances of that case justified a stay until termination of the criminal trial,²¹ factual distinctions between Dellinger and the present case render the Dellinger dictum inapposite. In Dellinger the criminal defendants themselves had been overheard by electronic surveillance. Consequently, the issue of the legality of the surveillance was squarely before the criminal trial court. By filing the civil action, the Dellinger plaintiffs thrust the same issue before the civil court. Thus, there existed a clear possibility of interference between the civil and...