Krause v. Rhodes
| Decision Date | 18 February 1982 |
| Docket Number | 79-3642,Nos. 79-3640,s. 79-3640 |
| Citation | 671 F.2d 212 |
| Parties | 8 Media L. Rep. 1130 Arthur KRAUSE, et al., Plaintiffs-Appellees, v. James A. RHODES, et al., Defendants, Attorney General of Ohio, for The Ohio Highway Patrol, Bureau of Criminal Investigation and Ohio National Guard, Intervenors-Appellants, and Kent State University, Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William J. Brown, Atty. Gen. of Ohio, Burton Fulton (argued), Virginia L. Reichard (on brief), Cleveland, Ohio, for the Ohio Highway Patrol, Bureau of Criminal Investigation and Ohio National Guard, Intervenors-Appellants in No. 79-3640.
John R. Climaco and Shimon Kaplan (on brief), Climaco, Goldberg, Boukalik & Seminatore Co., L.P.A., Cleveland, Ohio, for appellant, Kent State University in No. 79-3642.
Ellen S. Goldblatt (on brief), Landels, Ripley & Diamond, San Francisco, Cal., Rees Davis, Mansfield, Ohio, Nelson Karl, Cleveland, Ohio, David Engdahl, Engdahl, Renzo & Reed, P. C., Denver, Colo., Nicholas B. Waranoff, Jacobs, Sills & Coblentz, San Francisco, Cal., Robert S. Baker, Fayetteville, W. Va., Steven R. Keller, Columbus, Ohio, Sanford Jay Rosen (on brief and Chester E. Finn (on brief), Charles H. Horn (on brief and argued), Estabrook, Finn & McKee, Dayton, Ohio, for amicus curiae Dayton Daily News.
argued), Rosen & Remcho, San Francisco, Cal., for appellees.
Before EDWARDS, Chief Judge, LIVELY, Circuit Judge, and PHILLIPS, Senior Circuit Judge.
In these cases we deal with appeals from certain public disclosure orders entered by then U.S. District Judge William Thomas 1 in the Northern District of Ohio in the aftermath of the tragic events of May 4, 1970 on the campus of Kent State University. The civil damage actions filed by the injured and the survivors of those killed by the Ohio National Guard during the riotous events of that week have now been settled. See Krause v. Rhodes, 640 F.2d 214 (6th Cir. 1981).2 But the interest of some of the parties, some historians and the news media continues unabated and has produced this litigation.
The Attorney General of Ohio has filed a careful and accurate statement of facts which supply the background of this appeal.
In deciding this appeal, This Court must remember the tumultuous, turbulent decade of the 1960's. The war in Southeast Asia, general social discontent and violent protests, particularly on campuses, focused national attention on the demonstrations at Kent State University in the Spring of 1970. The demonstrations attracted many nonstudents to the campus in Kent, Ohio. Included were university and non-university youths, curious adults, members of the media, law enforcement personnel plus members of various state, federal and local governmental agencies.
Following the May 4 tragedy, an immediate, intensive investigation began. Agencies involved included the Ohio State Highway Patrol, the BCI, the State Arson Department, the City of Kent Police Department, the Kent State University Police Department, the Ohio National Guard, the Federal Bureau of Investigation and the Department of Justice.
This background of events greatly affects the issue presented on appeal. The events of May 4, 1970 and the resulting litigation were both explosive and unique. While perhaps the passage of time has softened the emotional outcry regarding the unfortunate events of May 4, 1970, any judicial decision relating to those events uniformly receives media dissemination. By reason of this, a decision governing the public dissemination of Kent State discovery materials has important precedential value not only from a technical legal point of view, but as a future guideline governing the ability of governmental agencies to conduct critical investigative functions.
The documents now required to be publicly disseminated were produced by law enforcement agencies as a result of their interviews with countless witnesses to the events. The investigation required that all informational possibilities be explored.
The very nature of the documents which include hearsay, speculation and irrelevancies points to the wide range of questioning enlisted by various investigative agencies as well as the wide range of the stories elicited from witnesses.
The extensive investigations conducted at Kent State by the many agencies involved resulted in volumes of material, much of which proved to be unrelated to the issues which were litigated. The abundant fruits of liberal discovery is in sharp contrast with the limited number of documents relied upon in the various civil and criminal suits.
The unique circumstances under which discovery was conducted in the civil suits gives rise to serious policy considerations in regard to the public dissemination of materials obtained through discovery.
Judge Don Young consistently held that the discovery was to be open, broad and far-reaching. At no time, however, did he suggest public dissemination of the material. Reacting to various discovery requests and motions for protective orders in response thereto, Judge Young struck a balance between the litigant's need for the requested information and the possibility of harm or injustice to the others. For example, discovery was permitted, but a contemporaneous protective order was imposed by Court orders entered in 1974 and 1975 sealing certain depositions (App. pp. 45-46, 51-52).
The District Court held that all information which might prove relevant would be subject to discovery. Thus, documents and reports which were entitled to a claim of privilege were ordered to be produced. See the Court's orders of February 13, 1975 (App. pp. 65-66) and March 25, 1975 (App. pp. 70-72) in which motions to quash subpoenas duces tecum filed on behalf of the State agencies and the university were denied.
In this spirit of complete discovery, Judge Don Young on May 16, 1975, ordered that plaintiff be granted access to a transcript of the testimony of all witnesses appearing before the Federal Grand Jury which returned the indictments in United States v. Shafer, supra (App. pp. 82-83).
The Court's philosophy was articulated during litigation. In a Memorandum filed February 20, 1975, Judge Young stated:
(As repeated by the Court in its March 25, 1975 order; App. pp. 70-71.)
The Court was aware that while large volumes of material would be produced, only a small portion of that material ultimately would be relevant. Judge Young stated:
"In order to sort the wheat from the chaff in this case, many bushels of hearsay and opinion will have to be winnowed in order to produce a few grains of admissible evidence." Krause v. Rhodes (N.D.Ohio, 1975), 390 F.Supp. 1072, 1074.
In March, 1975, the Court added:
"Already in this case the Ohio National Guard, the Ohio State Highway Patrol, the Justice Department and the Federal Bureau of Investigation have opened their files in order to assure that both sides are in possession of all facts, thus expediting the search for the truth ... It is important that no fact, however ostensibly unimportant or irrelevant, which pertains to the events surrounding this case be withheld." (Emphasis added; App. pp. 70-71.)
The purpose of discovery was fulfilled through the Court's "open file" approach. The various state and federal agencies had "opened their files." No scrap of information, however unimportant or irrelevant, was withheld. Plaintiffs-Cross Appellants had access to all information from the files of various agencies prior to trial. The parties Motion to quash and for protective orders were promptly filed by agencies whose documents were the subject of discovery. In early 1975, counsel for Kent State University in behalf of certain witnesses objected to the depositions and voiced their concern that the discovery be used by plaintiffs' counsel solely in preparation for their case. The Court on April 24, 1975 granted the witnesses leave to file a motion for protective order (App. pp. 75-77).
to the civil litigation were free to use whatever information they chose in preparation for their case and to offer at trial whatever documents and exhibits they deemed relevant.
A hearing on that Motion was held on August 20, 1975. Plaintiffs' counsel argued that no limitation be placed upon the discovery documents in order to best serve "future journalists and historians" (App. pp. 109-117). The die had been cast regarding the desire of certain parties to insist on public dissemination of all discovery materials.
The District Court granted the Motion on behalf of the witnesses and instructed counsel to prepare a protective order broad enough to encompass all parties stating:
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