Benson v. United States, Congressional No. 17876.

• Decision Date: 05 April 1955
• Docket Number: Congressional No. 17876.
• Citation: 130 F. Supp. 347,133 Ct. Cl. 11
• Parties: Herman BENSON et al. v. The UNITED STATES.
• Court: U.S. Claims Court

130 F. Supp. 347

133 Ct. Cl. 11

Herman BENSON et al. v. The UNITED STATES.

Congressional No. 17876.

United States Court of Claims.

April 5, 1955.

Richard K. Lyon, Washington, D. C., for plaintiffs.

George S. Leonard, New York City, with whom was Warren E. Burger, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

JONES, Chief Judge.

This case comes to the court by Congressional reference. It concerns damages (loss of life, personal injury, and property damage) resulting from the explosion of a munitions truck on a public highway in North Carolina in 1942. There are more than 200 plaintiffs.

The matter is presently before the court pursuant to an order directed to defendant to show cause why the Government's contention relating to the interpretation of Rule 26, 28 U.S.C.A., containing discovery procedures, should not be overruled. Specifically, the rule directs the defendant to show cause why the court should not —

"(a) Hold (i) that `* * * rules which give to all litigants, private citizens and the Government alike, the same rights of pretrial discovery as is accorded to them in suits brought in the district courts pursuant to section 1346, title 28 * * *' require the words `not privileged' in Rule 26 of this court to be given the same meaning as the same words in Rule 34 of the Federal Rules of Civil Procedure 28 U.S. C.A.; (ii) that the Congress, in enacting section 55 of Public Law 779, 83d Congress, intended only to confirm authority previously given by and exercised under section 2071; and (iii) that Rule 26 of this court, from its adoption, was a procedure separate and distinct from the call procedure, and as such was and is unrestricted by the provisions of section 2507; and

"(b) Order defendant's claims of privilege in this proceeding to be tested by the meaning accorded to privilege in the law of evidence."

The bill pending in the House of Representatives for the relief of claimants who suffered loss as the result of the explosion was referred to the court on November 21, 1951, pursuant to sections 1492 and 2509 of title 28, United States Code.

Six months prior to this reference, on May 15, 1951, the court adopted revised rules, substantial portions of which were derived from the Federal Rules of Civil Procedure for the district courts of the United States. The discovery procedures of Rule 34 of the Federal Rules were not included in the revision. Instead, the court adopted rules authorizing calls upon the Government by the court on its own motion or by plaintiffs upon motion. Provision for such calls was contained in Rule 26 of the revision of May 15, 1951. Rule 27 of the same revision authorized calls by defendant on parties plaintiff. The latter procedure was an innovation in the rules of the court at that time. Authority for the procedure was predicated on the provisions of section 2504 of title 28 which authorize the court, at the instance of the Attorney General, to order any plaintiff to appear before a commissioner and be examined on oath as to all matters pertaining to his claim.

Authority for Rule 26 of the 1951 revision rested on section 2507, title 28, which, at that time, provided in pertinent part as follows:

"The Court of Claims may call upon any department or agency of the United States for any information or papers it deems necessary * * *.

"The head of any department or agency may refuse to comply when, in his opinion, compliance will be injurious to the public interest."

Pleadings in the instant case were completed in May 1952, and on July 29, 1952, plaintiffs filed two motions pursuant to (the then) Rule 26(b) for calls upon the Department of the Army and the Interstate Commerce Commission. Defendant opposed both motions. Oral argument was heard at the October 1952 term, and instructions were issued from the bench which appeared at the time to clarify the situation.

In the course of pretrial proceedings subsequently held, it developed that the issues between the parties relating to calls had not been resolved. A series of additional motions for calls and orders followed. Defendant opposed in each instance. Parts of plaintiffs' motions were allowed, while others were denied without prejudice to the right to renew as indicated by the progress of pretrial proceedings. Such pretrial proceedings were carried on through 1952 and well into 1953.

On October 15, 1953, the rules of the court were again revised. In such revision this court for the first time adopted discovery procedures, as set forth in Rule 26 of the 1953 revision. That portion of our Rule 26 which is pertinent to this discussion was adopted almost verbatim from Rule 34 of the Federal Rules. It provides in substance that upon motion of any party showing good cause therefor the court may order any party to produce and permit the inspection and copying of any documents or things, not privileged.

The call provisions in the revision of October 1953 are contained in the present Rule 27, which reflects a consolidation of Rules 26 and 27 of the 1951 revision. The present rule provides for calls upon the Government by the court upon its own motion and for calls "by any party * * * upon any adverse party," upon motion to the court. This provision for calls in behalf of the parties requires the production by the party to whom the order is directed of any documents or things, not privileged. The words "not privileged" were thus inserted in the call rule for the first time. They were deemed necessary as a protection for any party plaintiff to whom a call might be directed at the instance of defendant. Under the terms of section 2507 the head of a department or agency could refuse to comply with a call issued at the instance of plaintiff when compliance would be injurious to the public interest. Without the words "not privileged" parties plaintiff would have been without any means whatever of challenging a call deemed to be improper. Insertion of the words "not privileged" in Rule 27 was intended to afford a party plaintiff the same rights to object to a call which either party might make to an order to produce for discovery under Rule 26. The words were deemed to have a definite meaning in the law of evidence, well understood by bench and bar.

Immediately after the revision of the rules on October 15, 1953, the commissioner advised the parties in the instant case that the revision affected substantially the procedures relating to the production of documents for discovery, calls, and pretrial submissions, and suggested that a fresh start be made on pretrial procedures in this case "to the end that the rules may be followed to the letter, and counsel may build a record which will not only present their respective positions, but preserve their points for future argument if either or both believes prejudice has been done."

Plaintiffs thereupon filed motions for discovery under the new Rule 26. Defendant opposed. Orders were nevertheless issued for the production of designated documents, not privileged, by the Interstate Commerce Commission, the Department of the Army, and the Department of Justice. Each order specified that privilege, if claimed, should be asserted by the head of the department.

Upon receipt of the order directed to it, the Department of the Army withdrew from the procedural controversy, advising the court that in compliance with the order it would make available for inspection and reproduction all documents in its possession requested by plaintiffs and specified in the court's order.

The Interstate Commerce Commission, in its initial response to the order of the court, cited the provisions of 49 U.S.C.A. § 320(f) as precluding it from producing the report of the accident filed with it by the motor carrier, and asserted a claim of privilege covering everything else specified in the order. In a subsequent response the Commission withdrew its claim of privilege as to everything except the motor carrier's report. Plaintiffs, in open court, withdrew their demand for this report. Consequently, no claim of privilege on behalf of the Interstate Commerce Commission is now pending.

The order to produce which had been directed to the Department of Justice was a modified version of the orders directed to the Department of the Army and the Interstate Commerce Commission. The Department of Justice made no response to the court, and it does not appear from the record that a response was necessary. It developed, however, in the course of further pretrial proceedings, that the position of the Interstate Commerce Commission respecting its claim of privilege would be argued by attorneys in the Department of Justice, and that the Department of Justice was not officially on record in relation to claims of privilege so asserted.

In order to clarify the position of the Government an amended order, dated February 24, 1954, was directed to the Department of Justice to produce designated documents, not privileged, and to advise the court whether or not certain other designated documents had been made available to the Department by the Interstate Commerce Commission.

The response of the Department of Justice to the court's amended order is contained in a letter from the Attorney General, dated July 30, 1954, addressed to the clerk. The Attorney General declined to produce or identify any designated documents, citing the provisions of section 2507 of title 28.

At this time plaintiffs were contending vigorously in pretrial proceedings that the act of the Interstate Commerce Commission in delivering to the trial attorney for defendant in the Department of Justice the report of accident filed with the Commission by the motor carrier, constituted a waiver of any privilege that might otherwise attach to such report. It had not been established as a fact in this court that the motor carrier's report had been delivered to the Department of Justice by the Interstate...