U.S., In re

Decision Date11 October 1977
Docket NumberNo. 1562,D,1562
Citation565 F.2d 19
PartiesIn re UNITED STATES of America, Petitioner. SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees, v. The ATTORNEY GENERAL et al., Defendants-Appellants. ocket 77-3041.
CourtU.S. Court of Appeals — Second Circuit

Daniel R. Murdock, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., for the Southern District of New York, William S. Brandt, Thomas E. Moseley, Stuart I. Parker, Frank H. Wohl, Asst. U. S. Attys., New York City, of counsel), for defendants-appellants.

Leonard B. Boudin, New York City (Herbert Jordan, Rabinowitz, Boudin & Standard, New York City, Mary B. Pike, Margaret Winter, New York City, of counsel), for plaintiffs-appellees.

Before VAN GRAAFEILAND and WEBSTER, * Circuit Judges, and DOOLING, District Judge. **

VAN GRAAFEILAND, Circuit Judge:

This action was commenced in 1973 by the Socialist Workers Party (SWP), the Young Socialist Alliance (YSA) and several individual members of these organizations. Their second amended complaint, which seeks both injunctive relief and some $40 million dollars in compensatory and punitive damages from the United States and various officials and employees, recites a litany of alleged wrongful acts on the part of the defendants beginning in 1938, including blacklisting, harassment, disruption, wiretapping, mail tampering, breaking and entering, and assault. Plaintiffs have had broad discovery by way of interrogatories, depositions and production of documents. 1 This has disclosed that since 1960 some thirteen hundred unidentified persons have provided information concerning plaintiffs on at least two occasions to the FBI and, of these, approximately three hundred were at one time members of SWP or YSA, or both. This appeal concerns the disclosure of their identities.

From the outset of discovery, plaintiffs have insisted that they would be satisfied with nothing less than the names of all informants. They contend that the informants would not be endangered by this disclosure and that, because the investigation of SWP and YSA has been terminated, the informants no longer provide a continuing source of information to the government which should be preserved. Defendants have just as adamantly asserted that none of the informants should be identified, contending that the government's ability to gather information for general law enforcement purposes would be severely damaged by disclosure in this case and that plaintiffs have failed to show that their need for disclosure outweighs the public interest in encouraging the flow of information from confidential sources.

The district judge, faced with an almost insoluble problem, has had difficulty in coming to grips with it. The matter was brought to a head by plaintiffs' motion for an order directing the FBI to furnish the names of nineteen informants, therefore identified only by code numbers, and to produce all documents relating to them. The district judge conducted an in camera inspection of the twenty-five file drawers of documents involved in this request, directed the government to prepare summaries of the files, and set forth a list of subjects which he wanted covered in the summaries. He stated that it might be necessary for the government to provide plaintiffs with similar information relating to all the informant files and indicated his belief that this could probably be done without any substantial revelation of the identity of informants, because he was "reasonably convinced that the identity of the individuals in all, virtually all, cases would be useless to (him) as a judge or to the parties to the litigation."

Plaintiffs' counsel reasserted, however, that plaintiffs were unwilling to settle for anything less than disclosure of the names of all informants, and the district judge thereupon issued the oral in camera order which is the subject of this appeal. In a somewhat discursive ruling, he stated that plaintiffs' counsel must have access to the detailed facts about the use of informants and that the FBI must produce the eighteen files 2 for inspection by four attorneys representing the plaintiffs. 3 He stated also that production would not stop with the eighteen files but would undoubtedly go beyond and might encompass the full thirteen hundred informant files. The lawyers were ordered to keep the information which they secured confidential and, indeed, not to make public the disclosure procedure which the court had decided to follow.

Defendants seek review of this order under both 28 U.S.C. §§ 1651 and 1291, relying as to the latter section upon the collateral order rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Plaintiffs concede that this Court has jurisdiction. However, jurisdiction cannot be conferred by agreement of the parties, Stratton v. St. Louis Southwestern Railway, 282 U.S. 10, 18, 51 S.Ct. 8, 75 L.Ed. 135 (1930); IBM Corp. v. United States, 493 F.2d 112, 119 (2d Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974), and it is the court's duty to determine whether the order is cognizable for review. United States v. Cusson, 132 F.2d 413, 414 (2d Cir. 1942).

In Xerox Corp. v. SCM Corp., 534 F.2d 1031 (2d Cir. 1976), where appellate review was sought of pretrial discovery orders of documents assertedly protected by the attorney-client privilege, this Court reiterated its longstanding position against reviewability. We stated that in the absence of a 28 U.S.C. § 1292(b) certification, a persistent disregard of the Rules of Civil Procedure or a manifest abuse of discretion, interlocutory review of pretrial discovery orders would not be permitted. We also indicated that review might be allowed where the case presents legal questions of first impression or of extraordinary significance. The district judge has not certified this matter for appeal. Unless, therefore, the application to this Court satisfies one of the alternative requirements for reviewability, we are bound by our prior decisions to deny review.

The question of informer privilege is, of course, not one of first impression. It is an ancient doctrine with its roots in the English common law, 3 Russell on Crimes, at 592-93 (6th ed. 1896), founded upon the proposition that an informer may well suffer adverse effects from the disclosure of his identity. Illustrations of how physical harm may befall one who informs can be found in the reported cases. See, e. g., In Re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895); United States v. Toombs, 497 F.2d 88, 90 n.1 (5th Cir. 1974); Swanner v. United States, 406 F.2d 716 (5th Cir. 1969); Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958). However, the likelihood of physical reprisal is not a prerequisite to the invocation of the privilege. Often, retaliation may be expected to take more subtle forms such as economic duress, blacklisting or social ostracism. See Usery v. Local 720, Laborers' International Union of North America, 547 F.2d 525, 527 (10th Cir.), petition for cert. denied, 431 U.S. 938, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977); Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir. 1972); Wirtz v. Continental Finance & Loan Co., 326 F.2d 561, 563-64 (5th Cir. 1964); Mitchell v. Roma, 265 F.2d 633, 637 (3d Cir. 1959); Hodgson v. Keeler Brass Co., 56 F.R.D. 126, 127-28 (W.D.Mich.1972); 8 Wigmore, Evidence § 2374 at 762 (McNaughton Rev. 1961). The possibility that reprisals of some sort may occur constitutes nonetheless a strong deterrent to the wholehearted cooperation of the citizenry which is a requisite of effective law enforcement.

Courts have long recognized, therefore, that, to insure cooperation, the fear of reprisal must be removed and that "the most effective protection from retaliation is the anonymity of the informer." Wirtz v. Continental Finance & Loan Co., supra, 326 F.2d at 563-64; see also McCray v. Illinois, 386 U.S. 300, 306-09, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Usery v. Local 720, supra, 547 F.2d at 527. "By withholding the identity of the informer, the government profits in that the continued value of informants placed in strategic positions is protected, and other persons are encouraged to cooperate in the administration of justice." United States v. Tucker, 380 F.2d 206, 213 (2d Cir. 1967). Congress, also, has recognized the importance of this protective measure. See, e. g., United States v. Greenwood Municipal Separate School District, 406 F.2d 1086, 1089-1090 (5th Cir.), cert. denied, 395 U.S. 907, 89 S.Ct. 1749, 23 L.Ed.2d 220 (1969).

The doctrine of informer privilege is applied in civil cases as well as criminal. Wirtz v. Continental Finance & Loan Co., supra, 326 F.2d at 563, and limits the right of disclosure under Rule 34 of the Federal Rules of Civil Procedure. Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114, 116 (5th Cir. 1966). Indeed, there is ample authority for the proposition that the strength of the privilege is greater in civil litigation than in criminal. See United States v. Carey, 272 F.2d 492, 493 (5th Cir. 1959); Mitchell v. Roma, supra, 265 F.2d at 637-38; Black v. Sheraton Corp., 47 F.R.D. 263, 272 (D.D.C.1969); Bocchicchio v. Curtis Publishing Co., 203 F.Supp. 403, 407 (E.D.Pa.1962). However, the privilege is not absolute in either. Where the identification of an informer or the production of his communications is essential to a fair determination of the issues in the case, the privilege cannot be invoked. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Alexander, 495 F.2d 552, 553 (2d Cir. 1974).

The burden of establishing the need for disclosure is upon the person who seeks it. United States v. Prueitt, 540 F.2d 995, 1004 (9th Cir. 1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977). This burden is not...

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