565 F.Supp. 1353 (W.D.Mich. 1983), G77-6, Bergman v. United States

Docket Nº:G77-6.
Citation:565 F.Supp. 1353
Party Name:Walter BERGMAN and James Drummond, Personal Representative of the Estate of Frances Bergman, Deceased, Plaintiffs, v. UNITED STATES of America; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation, and four unknown agents of the Federal Bureau of Investigation, Thomas J. Jenkins, individually and as a former
Case Date:May 31, 1983
Court:United States District Courts, 6th Circuit, Western District of Michigan
 
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565 F.Supp. 1353 (W.D.Mich. 1983)

Walter BERGMAN and James Drummond, Personal Representative of the Estate of Frances Bergman, Deceased, Plaintiffs,

v.

UNITED STATES of America; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation, and four unknown agents of the Federal Bureau of Investigation, Thomas J. Jenkins, individually and as a former employee of the Federal Bureau of Investigation, Defendants.

No. G77-6.

United States District Court, W.D. Michigan, Southern Division.

May 31, 1983

Opinion on Reconsideration, of Sanctions May 24, 1983.

Opinion on Liability May 28, 1983.

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William H. Goodman, Goodman, Eden, Millenden & Bedrosian, Neal Bush, Bush, Bennett & Magid, Mark Granzotto, Deborah LaBelle, Detroit, Mich., for plaintiffs.

John J. Farley, III, Director, Torts Branch, Civ. Div., U.S. Dept. of Justice, R. Joseph Sher, Asst. Director, Torts Branch, Nicki L. Koutsis, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for defendants.

ENSLEN, District Judge.

ON MOTION TO COMPEL PRODUCTION

After rendering an Opinion from the Bench on March 3, 1983 on Plaintiffs' Motion to Compel the Production of Documents, the Court, so as to more fully set forth the basis of that decision, issues the following written Opinion. Based upon an asserted privilege which protects the government from disclosing the identity of its confidential informers, Defendants objected to certain of Plaintiffs' requests for production of documents. After attempted conciliation between the parties with regard to the informer's privilege failed, the Court was requested to intervene in the resolution of this dispute.

The leading federal decision with regard to the government's privilege against disclosure of the identity of informers is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), where the Supreme Court declared that:

What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 US 251, 83 L ed 151, 59 S.Ct. 174; Re Quarles, 158 US 532, 39 L ed 1080, 15 S.Ct. 959; Vogel v. Gruaz, 110 US 311, 316, 28 L ed 158, 160, 4 S.Ct. 12 [14]. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes

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the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

The scope of the privilege is limited by its underlying purpose. Id. at 59-60, 77 S.Ct. at 627.

The court acknowledged that this privilege, which exists to protect the public interest and the free flow of information to law enforcement entities, is limited by nature. With regard to the limitation on the applicability of the privilege, the court specifically stated that it:

... arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication. Id. at 60-61, 77 S.Ct. at 627-628. (Footnotes omitted.)

In footnote 8, the court states, with no mention of the informant's family, that the death of the informant dissolves the privilege.

Finally, Roviaro states that the Court must consider the particular circumstances of each case, the possible significance of the informer's testimony, and any other relevant factors in balancing the respective interests.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Id. at 62, 77 S.Ct. at 628.

Based upon the foregoing, the Court must balance Plaintiffs' right to prepare their case against the public interest in protecting the free flow of information.

In Timken Roller Bearing Company v. United States, 38 F.R.D. 57 (ND Ohio 1964), the court indicated that:

There is very little authority on the applicability of the informer's privilege to civil cases ... Id. at 66.

While that language suggests there may be no privilege which the government may assert in civil matters, the court nonetheless proceeded to order the production of those documents for an in camera inspection to determine whether "the statements 'would not embarrass the informants in their social relations or their employment or endanger their safety.' " Id. at 66, quoting with approval Mitchell v. Bass, 252 F.2d 513 (CA 8 1958).

Five years later, in Wirtz v. International Printing Pressmen & Assistants' Union of North America, AFL-CIO, 47 F.R.D. 58 (ED Tenn.1969), Judge Neese applied the privilege and concluded that disclosure was not essential to a fair determination of the issues before him. Based upon a comparison of the Timken and Wirtz cases, it is apparent that there exists a split of authority over the applicability of the informer's privilege to a civil lawsuit.

The informer's privilege has been well recognized as essential to effective enforcement of the Fair Labor Standards Act. Hodgson v. Keeler Brass Company, 56 F.R.D. 126 (WD Mich.1972); Dunlop v. Carriage Carpet Company, 548 F.2d 139 (CA 6 1977); and the opinion of the Hon. Benjamin F. Gibson in Usery v. Brandel, 87 F.R.D. 670 (WD Mich.1980). Likewise, the privilege has been applied in matters alleging violations of the Sherman Act. United States v. Lorain Journal Company, 10 F.R.D. 487 (ND Ohio 1950).

Westinghouse Electric Corporation v. Burlington, 351 F.2d 762 (DC Cir.1965), involved

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a private treble-damages antitrust action, wherein the government asserted the privilege as a ground for quashing a subpoena duces tecum served by the defendants upon the Attorney General seeking the discovery of complaints filed with the government by utilities against electrical equipment manufacturers, it was noted that the policies behind the privilege and its exceptions extended to civil as well as criminal cases, and that there was no logical reason to set up two different privileges, one for civil and the other for criminal cases. Holding that the district court had not applied the proper standards in sustaining the privilege claim, the Court of Appeals remarked that most informers presumably do not want their names to be revealed in either civil or criminal proceedings, and that the competing interest, when balanced under the principles enunciated in Roviaro, should be struck in each case, be it civil or criminal, toward determining whether disclosure was essential in maintaining fairness. The court, however, also added that a Sherman Act treble damages action was not wholly a private civil action.

Although some cases hold to the contrary, Brennan v. Automatic Toll Systems, Inc., 60 F.R.D. 195 (SD N.Y.1973), I find, after having reviewed all pertinent decisional authority, that the informer's privilege is applicable to civil and criminal cases alike. The prevailing view is contained in the Supreme Court's language in Roviaro that the informer's privilege, and the compelling interests underlying that privilege, are essentially the same in criminal and civil cases. See e.g., Socialist Workers Party v. Attorney General, 565 F.2d 19 (CA 2 1977), cert. den., 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978).

In Hampton v. Hanrahan, 600 F.2d 600 (CA 7 1979), the United States Court of Appeals for the Seventh Circuit noted that:

The determination of the guilt or innocence of a criminal defendant has been characterized as qualitatively more significant than civil litigation, thus justifying a higher threshold of justification for exceptions to the privilege in civil cases. However, the difference in "significance" of criminal and civil cases simply should be considered another factor in the Roviaro balancing test. Further, the proposition that all civil cases are less significant--and therefore require a higher level of justification for the disclosure of the identity of the informer--than all criminal cases is a dubious one. It would seem impossible to conclude absolutely that every criminal misdemeanor case is "more significant" than civil actions to redress, for example, egregious violations of an individual's rights. Id. at 637, n. 40.

Accordingly, the privilege may be asserted in civil actions, although, as can be gleaned from my previous remarks, it is a qualified privilege, subject to certain exceptions. Again, borrowing from Hampton:

Since Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it has been clear that the so-called informer's privilege (the privilege that protects the identity of a person which otherwise would be required to be disclosed during the course of litigation) is not absolute. In Roviaro the Court said, "Where the disclosure of an informer's identity ... is relevant and helpful to the defense of an...

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