Carr v. Monroe Manufacturing Company

• Decision Date: 18 August 1970
• Docket Number: No. 28397.,28397.
• Citation: 431 F.2d 384
• Parties: Grozella CARR, Fannie Moore, Vera Walker, Coda M. Fears, Mary Lessie Ewing and Ester Stegall, Plaintiffs-Appellees, v. MONROE MANUFACTURING COMPANY, Defendant, John E. Aldridge and Marvin Wooten, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.2d 384 (1970)

Grozella CARR, Fannie Moore, Vera Walker, Coda M. Fears, Mary Lessie Ewing and Ester Stegall, Plaintiffs-Appellees, v. MONROE MANUFACTURING COMPANY, Defendant John E. Aldridge and Marvin Wooten, Defendants-Appellants.

No. 28397.

United States Court of Appeals, Fifth Circuit.

August 18, 1970.

H. L. Hutcherson, Walter R. Bivins, Jackson, Miss., for defendants-appellants.

Robert Fitzpatrick, James Robertson, Jackson, Miss., Mr. Robert Patterson, Aberdeen, Miss., for plaintiffs-appellees.

Before JOHN R. BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

The plaintiffs are Negroes who brought a class action against the corporate defendant (now Conoco Plastics, Inc.) and against the individual defendants, as officers of the Mississippi Employment Security Commission (MESC), charging Monroe Manufacturing Company with racial discrimination in employment and the individual state officers with racial discrimination in handling job applications and in job referrals and employment classification, all in violation of Tit. VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

It quickly became obvious to the parties that records of MESC would be among the most relevant evidence in the case. The MESC officials filed a motion in the District Court contending that under Section 7411,¹ Miss.Code of 1942, as amended, the MESC records in question were privileged and confidential and that any employee of the Commission who revealed them was subject to criminal prosecution. They moved the court to hold the records privileged, and to facilitate decision plaintiffs filed a cross-motion for their production. The District Judge granted the cross-motion to produce, and subsequently entered various protective provisions but declined to allow the MESC officials to block out on work application cards the names and addresses of applicants for employment and of employers not parties to the suit. The MESC officers seek to appeal from this latter part of the order.

The District Judge declined to certify the question as an appealable interlocutory order under 28 U.S.C. § 1292(b). The MESC officers then filed this appeal as from an injunction under 28 U.S.C. § 1292(a). Plaintiffs moved to dismiss the appeal, and the motion was carried with the case.

We hold that the order was appealable as a final order, 28 U.S.C. § 1291. No provision of § 1292 allows this appeal.

The following district court orders, entered in aid of a pending civil action and whether directed to a party or non-party, * * * are interlocutory in character, and are non-appealable: an order directing or refusing to direct the issuance of a subpoena, or granting or denying a motion to vacate a subpoena; an order directing or refusing to direct a party or witness to testify or to produce documents in response to a subpoena or a notice; an order granting or denying a motion to suppress a deposition; an order directing or refusing to direct a party to permit inspection under Rule 34; an order requiring or refusing to require a party to submit to a physical examination under Rule 35. Nor is such interlocutory order appealable as an injunction.

6 Moore, Federal Practice, ¶ 54.16 at 147 (2d ed. 1966). As pointed out in Cobble-dick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the requirements of a healthy legal system simply do not permit halting the orderly process of a case in midstream to review incidentally matters which cross the current of the litigation. The relief sought by plaintiffs is not an injunction — all orders of court are mandatory in the sense that they must be obeyed but not all orders of court are injunctions. 6 Moore, ¶ 54.07 at 46. Construing discovery orders as injunctive would do violence to the policies enunciated in Cobbledick. See, e. g., Tracor, Inc. v. Premco Instruments, Inc., 395 F.2d 849 (5th Cir. 1968).

However, discovery orders may be appealable where a governmental privilege is asserted and the government is not a party to the suit. Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417 (5th Cir. 1968); Overby v. United States Fidelity & Guaranty Co., 224 F.2d 158 (5th Cir. 1955). In such cases the asserted governmental interest may be "irretrievably breached" by disclosure, and the government has no remedy on appeal from a final judgment in the original action, even where the matter sought to be discovered is held by one of the parties on the government's behalf. Overby, supra, at 162.

Applying these principles to this case, to the extent that the appellants asserted the protection of the privilege on their own behalf, denial of the privilege was not appealable in the absence of a finding of contempt or a final judgment. Cobbledick, supra. But to the extent that a colorable claim was properly alleged on behalf of the State of Mississippi, the order was appealable.

Governmental privilege is assertible only by the government affected. United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727, 733 (1953).

There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege. * * *

Id. at 7-8, 73 S.Ct. at 531, 97 L.Ed. at 733. Overby, supra, at 162-163. The claim of privilege was lodged in part by Aldridge, who as MESC chairman administers the Mississippi State Employment Service. Therefore it was properly raised.

The trial court followed the Overby requirement of independent judicial examination of the appropriateness of the privilege. On this appeal, defendants suggest that the case by case approach to the privilege is inappropriate in that the Mississippi statutes grant an absolute privilege against disclosure of the employment records here sought.

We turn first to plaintiffs' suggestion that we narrow the statutes by construction. Plaintiffs maintain that § 7412² is inapplicable to a claim of testimonial privilege, and that § 7411, providing for confidentiality, would not be construed by the Mississippi courts to grant an absolute privilege for all communications to MESC. They argue persuasively that the privilege contemplated by § 7412 is not a freedom from divulging confidential communications at all, but that the section refers instead to nonliability in slander actions for communications to MESC. Cf. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So.2d 771 (1949) (en banc). They cite cases from other jurisdictions interpreting statutes strikingly similar to § 7411 as posing no bar to discovery of otherwise confidential communications in connection with pending litigation of all sorts.³

We decline the invitation to divine how the Mississippi courts would construe the statutes.⁴ Such a determination is unnecessary to our decision and is better left to the state courts.

We proceed to examine the role of the claimed state evidentiary privilege in this federal case.

The Mississippi statute, however construed, does not grant an absolute privilege from disclosure of MESC records in this case. We have recently reviewed the relevant authorities in Garner v. Wolfinbarger, 430 F.2d 1093 No. 26168, 5th Cir., Aug. 31, 1970. We there concluded that in any given instance the special federal interest in seeking the truth in a federal question case may require disclosure despite the existence of a state rule holding the same communications privileged. We reaffirm that result here.

Our conclusion is buttressed in this case by the policy of American courts noted above to weigh, independently of the evaluation of an executive officer, the need for any asserted governmental privilege. United States v. Reynolds, supra; 8 Wigmore, § 2379 at 808-17. Reynolds was a state secret case. Later cases have not confined the court's control over governmental privileges to assertions of the state secret privilege. In Overby the Comptroller of the Currency asserted that disclosure of reports of examination of national banks would make banks reluctant voluntarily to provide information and thereby undercut the Comptroller's ability to supervise them, an argument strikingly similar to that advanced by defendants here. This court cited Reynolds for the proposition that "judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." 224 F.2d at 163.

State cases of governmental privilege seem to follow the same approach. Stratford Factors v. New York State Banking Dept., 10 A.D.2d 66, 197 N.Y.S.2d 375 (1960); Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).⁵ The granting or withholding of any privilege requires a balancing of competing policies, 8 Wigmore, § 2285 at 527-28. The claim of governmental privilege is no exception; in fact, the potential for misuse of government privilege, and the consequent diminution of information about government available to the public, is one more factor which strongly suggests the need for judicial arbitration of the availability of the privilege. That the need for discovery of communications with a state governmental agency arises in a federal case in no way diminishes the need for an independent weighing by the court of the policies behind the privilege.⁶

Making even more compelling the need for judicial evaluation of the availability of the privilege is the fact that this is a suit against the highest official of the very government agency asserting the privilege. In such cases there is a special danger in the government official having the power to define the scope of his own privilege, free of supervision by the courts. As one pre-Reynolds court put it, in a similar suit:

Inasmuch as * * * the alleged actionable deviation from official conduct by the defendants is brought in issue by the answer * * *, it is eminently appropriate that all relevant documents which elucidate those

...