Kerr v. U.S. District Court for N. District of Cal.

• Decision Date: 14 June 1976
• Docket Number: No. 74-1023,74-1023
• Parties: Henry W. KERR et al., Petitioners, v.
• Court: U.S. Supreme Court

426 U.S. 394

96 S.Ct. 2119

48 L.Ed.2d 725

Henry W. KERR et al., Petitioners,

v UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA et al.

No. 74-1023.

Argued Nov. 11, 1975.

Decided June 14, 1976.

Syllabus

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In a class action by California state prisoners on behalf of themselves and all present or future adult male felons in California state prisons or on parole, plaintiffs alleged constitutional violations in the manner in which the members of the California Adult Authority and other petitioners determine the length of detention and conditions of punishment for convicted offenders, and sought declaratory and injunctive relief. In the course of discovery pursuant to Fed.Rule Civ.Proc. 34 plaintiffs sought (1) Adult Authority files consisting, Inter alia, of personnel files of all members and employees of the Adult Authority; and (2) prisoners' files, consisting of the files of every twentieth inmate in each state correctional institution. Petitioners, claiming that the Adult Authority files were irrelevant, confidential, and privileged, suggested that they should not be compelled to turn over the files without prior District Court In camera inspection. That court ordered the production of the documents without such review but limited the number of people associated with the plaintiffs who might examine the documents. Petitioners then filed a petition for mandamus to vacate the discovery order, which the Court of Appeals denied. Though recognizing a qualified governmental "official or state secrecy privilege," the court indicated that, contrary to the situation here, assertion of such a privilege had to be made with specificity by high-level Adult Authority officials. A somewhat similar course ensued with regard to the prisoners' files, ending with the Court of Appeals' denial of mandamus without opinion. Held: In the circumstances of this case and particularly since less extreme alternatives for modification of the challenged discovery orders were available issuance of the writ of mandamus is inappropriate. Pp. 402-406.

(a) As a means of implementing the rule that mandamus will issue only in extraordinary circumstances, the party seeking this largely discretionary writ must show that there are no other adequate means to secure the desired relief. Pp. 402-403.

(b) He adequate alternatives to mandamus existed. The Court of Appeals' opinion did not foreclose In camera review, but apparently left open the opportunity for petitioners through responsible officials to assert the privilege more specifically and have their request for In camera review reconsidered. They thus have an avenue far short of mandamus to achieve the relief they seek, and this approach affords an appropriate and useful method for achieving a balance between petitioners' claims of irrelevance and privilege and plaintiffs' asserted need for the documents. Pp. 404-406.

(c) There is no reason to believe that by its order relating to the discovery of the prisoners' files the Court of Appeals meant to foreclose petitioners from availing themselves of the same opportunity of securing In camera review as is available in the case of the Adult Authority files. P. 406.

511 F.2d 192, and order of Dec. 18, 1974 (unreported), affirmed.

Karl S. Mayer, San Francisco, Cal., for petitioners.

B. E. Bergesen, III, San Francisco, Cal., for respondents.

Mr. Justice MARSHALL delivered the opinion of the Court.

Petitioners, defendants in a class action, sought issuance of writs of mandamus from the United States Court of Appeals for the Ninth Circuit to compel the District Court to vacate two discovery orders. The Court of Appeals refused to issue the writs. We hold that in the circumstances of this case and particularly in light of the availability of an alternative, less extreme, path to modification of the challenged discovery orders issuance of the writ is inappropriate. We therefore affirm.

I

Seven prisoners in the custody of the Department of Corrections of the State of California filed a class action in the United States District Court for the Northern District of California on behalf of themselves and "on behalf of all adult male felons who now are, as well as all adult male felons who in the future will be, in the custody of the California Department of Corrections, whether confined in an institution operated by the Department or on parole." App. 370.¹ Among the defendants in the action are petitioners in this case: the individual members of the California Adult Authority, the Administrative Officer of the California Adult Authority, and the Director of Corrections of the State of California. Plaintiffs' complaint alleges substantial constitutional violations in the manner in which the California Adult Authority carries out its function of determining the length and conditions of punishment for convicted criminal offenders.

In the course of discovery, plaintiffs submitted requests for the production of a number of documents pursuant to Fed.Rule Civ.Proc. 34. Petitioners' subsequent two petitions for writs of mandamus were concerned with two classes of documents that were part of these requests. The first class, part of a series of requests first made in June 1973, and which will be referred to here as the "Adult Authority files," is generally composed of the personnel files of all members and employees of the Adult Authority, all Adult Author- ity documents relating to its past, present, or future operation, and all memoranda written by the Chairman of the Adult Authority within the preceding five years.² The second class of documents with which we are concerned was first requested by plaintiffs in November 1973 and will be referred to here as the "prisoners' files." Plaintiffs requested the opportunity to examine the files of every twentieth inmate at each California Department of Corrections institution, App. 234; the class of documents, therefore, is comsed of the correctional files of a sample of the prisoners in the custody of the California Department of Corrections.

When presented with the request for the Adult Authority files, petitioners objected, claiming that the files were irrelevant, confidential, and privileged, and suggesting that they should not be required to turn over the files to plaintiffs without prior In camera review by the District Court to evaluate the claims of privilege. Plaintiffs moved, pursuant to Fed.Rule Civ.Proc. 37, for an order compelling discovery. App. 76. The District Court referred the matter to a Magistrate for findings and recommendations, and the Magistrate recommended that the District Court order production of the Adult Authority files without undertaking an In camera inspection of the files. The District Court accepted the Magistrate's recommendations and ordered the production of the documents. Seeking to limit distribution of the personnel files of the Adult Authority members and their employees, however, the District Court issued a protective order limiting the number of people associated with the plaintiffs who could examine those documents:

"(N)o personnel file of any member of the Adult Authority, hearing representative or executive officer, nor any copy of any of its contents, shall be shown to any person except counsel of record for the plaintiffs and no more than a total of two investigators designated by such counsel, and then only to the extent necessary to the conduct of this action." Pet. for Cert. xvi.

Dissatisfied with the District Court's ruling, petitioners filed a petition for a writ of mandamus under 28 U.S.C. § 1651(a),³ requesting the Court of Appeals for the Ninth Circuit to vacate the District Court's order granting plaintiffs' motion to compel discovery. The Court of Appeals denied the petition in an opinion filed on January 17, 1975. 511 F.2d 192. It concluded first that since "the question of relevancy 'is to be more loosely construed at the discovery stage than at the trial.' 8 Wright & Miller, Federal Practice and Procedure, § 2008 at 41 (1970)," issuance of the writ on the grounds of the asserted irrelevance of the documents in question was inappropriate. Id., at 196. According to the Court of Appeals, discovery of the documents was part of "a proper line of attack" in the underlying lawsuit. Ibid. The court went on to observe that petitioners had no absolute privilege that would allow them to avoid production of the documents at issue. The court did recognize, however, the existence of a qualified common-law governmental privilege "encompassing and referred to sometimes as the official or state secret privilege," Id., at 198, that could conceivably cover the requested documents. But relying on this Court's decision in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), the Court of Appeals indicated that because the assertions of privilege were not personally made by high-level officials of the California Adult Authority and because the assertions of privilege were lacking in what it saw to be the requisite specificity, issuance of the writ on grounds of privilege was inappropriate:

"Neither the Chairman of the (Adult) Authority nor the Director of Corrections nor any officialf these agencies asserted, in person or writing, any privilege in the district court.

"The claiming official must ' "have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced" ' (United States v. Reynolds, 345 U.S., at 8 n. 20, 73 S.Ct., at 532, quoting from Duncan v. Cammell, Laird & Co., (1942) A.C. 624, 638) and state with specificity the rationale of the claimed privilege. . . .

"In (this) suit, petitioners' counsel merely raised a blanket objection covering any and all documents in request numbers 7, 14, 15, 18, 20, 21 and 22. Formally claiming a privilege should involve specifying...