Mitchell v. Bass

• Decision Date: 26 February 1958
• Docket Number: No. 15850.,15850.
• Citation: 252 F.2d 513
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. O. P. BASS, Sr., Nellie Maude Tolbert, Woodrow Wilkins, O. B. Clark, Mrs. C. E. Clark, Earle D. B. Garrison and Hayes Wilkins, Individually and Doing Business as Bass-Clark Lumber Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F.2d 513 (1958)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. O. P. BASS, Sr., Nellie Maude Tolbert, Woodrow Wilkins, O. B. Clark, Mrs. C. E. Clark, Earle D. B. Garrison and Hayes Wilkins, Individually and Doing Business as Bass-Clark Lumber Company, Appellees.

No. 15850.

United States Court of Appeals Eighth Circuit.

February 26, 1958.

Sylvia S. Ellison, Atty., U. S. Dept. of Labor, Washington, D. C. (Stuart Rothman, Solicitor, Bessie Margolin, Asst. Solicitor, Washington, D. C., and Earl Street, Regional Atty., U. S. Dept. of Labor, Dallas, Tex., were with her on the brief), for appellant.

C. E. Wright, El Dorado, Ark. (J. K. Mahony, H. S. Yocum, Emon A. Mahony and Henry S. Yocum, Jr., El Dorado, Ark., were with him on the brief), for appellees.

Before SANBORN, JOHNSEN, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The plaintiff, the Secretary of Labor, appeals from an order dismissing his petition brought under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to enjoin defendants from violating the minimum wage, overtime, and record-keeping provisions of the Act. The dismissal was entered pursuant to Rule 37 (b) (2) (iii) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides, among other things, that if a party refuses to obey an order made under Rule 34 the court may dismiss the action. The court had, pursuant to Rule 34, ordered the Secretary to produce for the defendants' inspection statements taken by the Secretary's investigators from four named employees of the defendants. The attorney representing the Secretary advised the court that he desired no extension of time within which to comply with the order and further advised the court that he had fully discussed disclosure with the Secretary, and that the Secretary had refused to comply. Thereupon, the court dismissed the action.

The Secretary urges that the court erred in ordering the production of the employees' statements for the following reasons, (1) the employees' statements taken pursuant to the Fair Labor Standards Act are privileged, at least to the extent that their production may not be required under Rule 34; and (2) defendants have not shown "good cause" under Rule 34.

The complaint, as supplemented by answers to interrogatories, charges that the defendants have failed to compensate eleven named employees at the minimum and overtime rates prescribed by the Act, and that the company's records did not reflect all the hours worked by said employees. The defendants contend their records are accurate, and that all employees have been fully paid. At a pretrial conference the court stated that the primary issue for trial was the accuracy of the defendants' wage and hour records. At said conference, upon the request of the defendants for disclosure of the names of the witnesses to be used at the trial, the Secretary's attorney stated he would use the eleven named employees whom the Secretary claims were underpaid, some investigators, and possibly some of the defendants. Thus, it is apparent that the names of the informers were disclosed without objection. Shortly thereafter, defendants moved, under Rule 34, for a discovery of the statements given by the eleven employees to the Secretary's investigators.¹ This motion was overruled upon the ground that good cause had not been shown. The court's order states that it is without prejudice to the defendants' right to renew the motion in the event any of the eleven witnesses can not be located or refuse to give statements to the defendants. Thereafter, defendants renewed the motion, limiting their demand for production to the statements of four of the named witnesses who had been interviewed and refused to give defendants a statement. Attached to the renewed motion is an affidavit stating that the defendants located the eleven witnesses, that statements were obtained from seven of such witnesses, but that four named witnesses refused to give a statement to the defendants. Three of such witnesses had terminated their employment with the defendants.

The record does not clearly show that the question of privilege was properly raised. The Supreme Court in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, holds that privilege is not to be lightly invoked. It must be raised by formal claim "lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." However, since the trial court considered the claim of privilege on its merits, we shall assume, without so deciding, that the issue of privilege is properly before us.

The Secretary bases his privilege contention upon both informer's privilege and executive privilege. Rule 34 provides for the production of documents "not privileged." The Supreme Court in the Reynolds case, supra, 345 U.S. at page 6, 73 S.Ct. at page 532, holds that the privilege referred to in the rule is evidentiary privilege, stating, "We think it should be clear that the term `not privileged,' as used in Rule 34, refers to `privileges' as that term is understood in the law of evidence."

We first consider the question of evidentiary privilege.

The informer's privilege is well established in the law of evidence. With reference to such privilege, the Court in Roviaro v. United States, 353 U.S. 53, at pages 59-60, 77 S.Ct. 623, at page 627, 1 L.Ed.2d 639, states:

"What is usually referred to as the informer\'s privilege is in reality the Government\'s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

"The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable." (Emphasis added.)

Judge Miller, who entered the order appealed from, had occasion to consider substantially the same problems as are involved in the present case in Durkin v. Pet Milk Co., D.C.W.D.Ark., 14 F.R.D. 385. The opinion in the Pet Milk Co. case gives detailed and careful consideration to the applicable authorities upon both the privilege and the good cause issue. The court reaches the conclusion that the informers' statements were not privileged as confidential communications. The court points out that the disclosure of the witnesses' statements would not embarrass the informants in their social relations or their employment or endanger their safety, stating (14 F.R.D. at page 390):

"And certainly, as to the statements of witnesses whose names have been disclosed to the defendant, even if they were privileged in the first instance, the privilege `ceases and is unnecessary after the names of the informants are voluntarily given to the defendant.\' * * *"

The statement just quoted is fully supported by Roviaro v. United States, supra, 353 U.S. at page 60, 77 S.Ct. at page 627, and the authorities cited therein at footnote 8.

The court advised counsel in the present case that he was basing his decision upon the principles established in the Pet Milk Co. case. We agree with the trial court that after the Government had voluntarily disclosed the names of the informers no further reason for applying the informer's privilege remained.

The claim of executive privilege is based upon 5 U.S.C.A. § 22, authorizing the head of each department to prescribe regulations, not inconsistent with law, for the government of his department, including the field of custody and use of records and papers; and upon the regulations issued pursuant thereto by the Secretary of Labor (29 C.F.R., Pocket Supplement, § 2.9). The regulations, in substance, authorize the Secretary to withhold documents when in his judgment it would be prejudicial to the Government or against public policy to produce them.

In our present case, the Secretary as plaintiff brought the action. We are here only concerned with the rights of the court in such a situation, and are not now concerned with the law applicable in situations where the Government is not a party to the litigation in which the production is sought.

Judge Miller, in the Pet Milk Co. case, 14 F.R.D. at page 390, sums up the reasons why executive privilege would not be available as follows:

"* * * In fact, this suit is a civil suit brought by the plaintiff against the defendant, and the plaintiff, while bringing the suit in his official capacity as Secretary of Labor, nevertheless is `in no different position than any ordinary litigant and is, therefore, bound by the Rules of Civil Procedure in the same respects as an ordinary litigant.\' * * *"

There is firm support for the trial court's position. Tobin v. Gibe, D.C. Del., 13 F.R.D. 16; United States v. Cotton Valley Operators Committee, D.C. W.D.La., 9 F.R.D. 719, affirmed 339 U.S. 940, 70 S.Ct. 793, 94 L.Ed. 1356; Walling v. Richmond Screw Anchor Co., D.C. E.D.N.Y., 4 F.R.D. 265; United States v. General Motors Co., D.C.N.D.Ill., 2 F.R.D. 528; 165 A.L.R. 1302, 1338, 1351. An excellent discussion of the applicable principles is found in 4 Moore's Federal Practice, para. 26.25 6. In discussing the Cotton Valley Operators...