In re Request from the United Kingdom Pursuant to the Treaty Between the Gov't of U.S. v. Trs. of Bos. Coll.

• Decision Date: 31 May 2013
• Docket Number: No. 12–1236.,12–1236.
• Citation: 718 F.3d 13
• Parties: In re REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES of America AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE, United States of America, Petitioner, Appellee, v. Trustees of Boston College, Movant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

718 F.3d 13

In re REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES of America AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE,United States of America, Petitioner, Appellee,

v.Trustees of Boston College, Movant, Appellant.

No. 12–1236.

United States Court of Appeals, First Circuit.

May 31, 2013.

Jeffrey Swope, with whom Nicholas A. Soivilien and Edwards Wildman Palmer LLP, was on brief for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before TORRUELLA, BOUDIN^* and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

As part of its academic mission, Boston College (“BC”), an institution of higher learning, undertook research into the armed conflict surrounding the independence movement of Northern Ireland during the second half of the Twentieth Century. In the course of said research, which it labeled the “Belfast Project” (“Project”), BC compiled extensive oral histories in the form of personal interviews and testimonies from formerly active participants in that volatile period, including from past members of the Irish Republican Army (“IRA”) and its various related organizations. Said materials are deposited in a secure section of BC's Burns Library, where they are accessible only for academic research and study, subject to strict confidentiality agreements entered into between BC and the interviewees.

On August 11, 2011, pursuant to Article 5 of the Treaty Between the Government of the United States and the Government

of the Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance on Criminal Matters, U.S.-U.K., Dec. 2, 1996, S. Treaty Doc. No. 104–2 (“US–UK MLAT”) ¹ and 18 U.S.C. § 3512, a commissioner appointed to represent Petitioner–Appellee the United States (“Petitioner”) issued, and thereafter sought enforcement of, a subpoena (the “August 2011 subpoena”) in the United States District Court for the District of Massachusetts. Said subpoena is aimed at compelling the production by BC of the recordings and/or transcripts of all interviews collected by the Project's researchers, “containing information about the abduction or death of Mrs. Jean McConville,” an apparent casualty of the interstitial conflict in Northern Ireland.

BC filed a motion to quash this subpoena, seeking to preserve the confidentiality of its research. The district court denied BC's request, but agreed to perform an in camera review of the documents sought by the Petitioner. Following said review, the Court ordered that 85 interviews in BC's possession be turned over to the Petitioner for eventual transfer to the UK authorities.

BC now appeals the district court's order to produce the interviews. Relying on In re Special Proceedings, 373 F.3d 37, 45 (1st Cir.2004), it claims that “ ‘heightened sensitivity’ to First Amendment concerns” applies and that materials in the interviews “may not be compelled unless directly relevant to a” bona fide investigation.

After a detailed review of the materials in question, we find that the district court abused its discretion in ordering the production of a significant number of interviews that do not contain any information relevant to the August 2011 subpoena.

I. Background

In 2012, we issued a decision in two consolidated appeals relating to the instant appeal. See In re Dolours Price, 685 F.3d 1 (1st Cir.2012), cert. denied sub. nom. Moloney v. United States, ––– U.S. ––––, 133 S.Ct. 1796, 185 L.Ed.2d 856 (2013). Those appeals came about after the district court rejected the efforts of two BC researchers closely related to the Project, Ed Moloney and Anthony McIntyre, to intervene in the subpoena enforcement proceedings. We shall only recount the facts and holding of that case as is necessary to frame and decide the present appeal.

As is apparent from the record, the origins of these proceedings lay in the UK's request for Petitioner US's assistance in investigating the 1974 disappearance of Mrs. McConville from her home in Belfast, Northern Ireland. The UK seeks to scrutinize the Project's materials for information aiding that investigation, and thus requested the United States' assistance in obtaining them. In March 31, 2011, as provided in the US–UK MLAT and 18 U.S.C. § 3512,² the district court appointed a commissioner to pursue the UK's request.

Shortly thereafter, in May 2011, the commissioner served his first set of subpoenas on BC seeking the production of the interviews of two individuals who had taken part in the Project, Brendan Hughes (who by then had passed away) (“Hughes”) and Dolours Price. BC produced the Brendan Hughes materials right away because the terms of the confidentiality agreement ended with his death. BC, however, filed a motion to quash the subpoena aimed at the Dolours price materials. While that motion was pending, the commissioner served BC with another subpoena in August 2011 (the subject of the present appeal). Instead of being directed at the production of specifically named interviewees, the August 2011 subpoenas sought “[t]he original audio and video recordings” and “[a]ny and all written transcripts, interview summaries, and interview indices” “of any and all interviews containing information about the abduction or death of Mrs. Jean McConville.” BC moved to quash this subpoena as well.

On December 16, 2011, the district court denied BC's requests to quash both sets of subpoenas. See United States v. Trustees of Boston College, 831 F.Supp.2d 435 (D.Mass.2011). It did, however, grant BC's alternative request to conduct an in camera review. On December 27, 2011, after reviewing the Dolours Price interviews, the district court ordered their production. BC has since handed over said materials. The district court also conducted an in camera review of the August 2011 subpoenaed materials “to see whether, fairly read, they f[e]ll within the scope of the subpoena.” It declined to consider whether a materiality or relevance analysis was necessary and found that the judicial role was circumscribed to “checking to see whether the data produced conforms to the subpoena.”

On January 27, 2012, the district court issued a Findings and Order in which it summarily explained how it conducted its in camera review. The Order included a Sealed Appendix listing the specific materials to be produced. The list identified the materials according to BC's coding system, using random letters and numbers to identify the interviewee and the interview number to be released. It neither explained why it ordered particular interviews to be released, nor why it ordered the production of all interviews by a given interviewee. In some cases it ordered the whole series of interviews conducted with a particular interviewee to be produced while in other cases only one interview from the series was ordered released. Before us now is BC's appeal from that order.

While the present appeal was pending, BC filed a Suggestion of Death pursuant to Fed. R.App. P. 43(a)(1), informing this court that, “[a]ccording to news reports, Dolours Price was found dead on January 23, 2013, at her home in Malahide, Northern Ireland.” In asking the court to take notice of her death, BC also requested that we vacate the district court's order to produce the August 2011 subpoenaed materials, dismissing this appeal as moot. Its main argument was that since the subject of the case, as identified in its caption, was Dolours Price, her death meant that criminal matters in relation to her could not continue.

The government opposed BC's request. It argued that the subpoenas requested materials relating to the abduction and death of McConville, “which very well might include interviews implicating persons other than Price,” and that the partiesand the district court understood that the subpoenas sought “documents relevant to the investigation of McConville's death, not merely those that might implicate Price.” BC rejected this argument, differentiating between the subject of the proceedings as identified in the caption (i.e., Dolours Price) and the scope of the materials sought by the subpoenas (i.e., information about the McConville abduction and death).³

We will first address BC's mootness argument.

II. Analysis

A. The Impact of Dolours Price's Death

It is not surprising that BC attributes great significance to the death of Dolours Price given that she evidently was targeted as part of the investigation into Mrs. McConville's apparent abduction, murder and disappearance. Dolours Price's death, however, does not have any decisive effect upon these proceedings because their subject matter is not, and has never been, solely Dolours Price's individual prosecution. Rather, these proceedings are a part of a broad investigation into the death of Mrs. McConville. This has been clear to the district court since the inception of the case, and to BC, at least since the August 2011 subpoena was issued. The materials filed under seal by the United States in the district court verify that these proceedings are based on a broad investigation, and not solely on an investigation against Dolours Price's actions. Thus, her death does not in any manner impinge or prevent the continuation of the broader investigation into Mrs. McConville's death.

BC's arguments regarding mootness seem to be partially based on the fact that the caption of the case indicates that the subject of the proceedings is a criminal investigation against Dolours Price. This argument is not well-founded. It is a settled principle that a defective caption (or even its absence) presents an issue of form that is not deemed fatal to an otherwise valid action. See 5A Wright and Miller, Fed. Prac. and Proc.: Civ. § 1321 at 388 (3d ed.) (2008). Stated otherwise, it is a matter of form without substance. In the past, in order to determine the...