Sealed Case (Government Records), In re
| Decision Date | 22 November 1991 |
| Docket Number | 91-3089,Nos. 91-3088,s. 91-3088 |
| Citation | 950 F.2d 736 |
| Parties | , 34 Fed. R. Evid. Serv. 1387 In re SEALED CASE (GOVERNMENT RECORDS). |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia.
Bruce C. Swartz, Associate Independent Counsel, Washington, D.C., with whom Arlin M. Adams, Independent Counsel, Philadelphia, Pa., and Richard M. Sharp, Washington, D.C., were on the brief, for appellant.
Donald E. Santarelli, Washington, D.C., for appellee.
Before RUTH BADER GINSBURG, SILBERMAN, Circuit Judges, and VAN GRAAFEILAND, * Senior Circuit Judge, United States Court of Appeals for the Second Circuit.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG. RUTH BADER GINSBURG, Circuit Judge:
Appellant Independent Counsel challenges portions of a district court order that permit the recipient of a grand jury subpoena duces tecum to withhold certain categories of documents; the district court ruled that the indicated documents are "personal records" sheltered from production by the Fifth Amendment safeguard against self-incrimination. D.D.C. Order in Misc. 90-207, Feb. 1, 1991. The district judge so ruled on the basis of an ex parte submission by the subpoenaed witness (appellee herein) and without examining the documents that counsel for the witness placed outside the "government records" classification. We vacate the challenged portions of the district court's order and remand the matter for further consideration whether any of the documents at issue falls within the government records category and therefore is not shielded from compulsory disclosure by the Fifth Amendment privilege.
The Independent Counsel who seeks more encompassing enforcement of the grand jury's subpoena is investigating possible violations of federal law, during the 1980s, by former Secretary of Housing and Urban Development Samuel Pierce, Jr. and HUD officials subordinate to him. The subpoena directed appellee, a former senior HUD official, to produce, inter alia, "[a]ll documents in your possession, custody, or control, obtained or generated in connection with your employment at HUD." The subpoena also required production of appellee's bank account records, tax returns, credit card expenditures, "calendars, calendar pads, daybooks, appointment books, or diaries," address books and rolodexes, and documents relating to charitable and political contributions by or on behalf of appellee.
Asserting her Fifth Amendment right to protection against self-incrimination, appellee first refused to produce any documents in response to the subpoena. Following written and oral arguments by both parties, and receipt of a key ex parte submission from appellee's counsel, the district court held that the Fifth Amendment plea did not justify withholding official records; accordingly, the court ordered appellee to produce "any and all official records" in several of the categories (lettered C-K) listed in her ex parte submission. The court further ruled that two of the listed categories (A and B) comprised personal records shielded from compulsory production; that one category (L) comprised records of a sole proprietorship similarly sheltered under appellee's Fifth Amendment plea; and that two other categories (L-1 1 and M) contained non-business or other personal records also sheltered by the Fifth Amendment. Qualifying these three rulings on privileged documents, the court ordered production of any "required records," 2 such as payroll records and records reflecting political or charitable contributions, contained in the otherwise sheltered categories (A, B, L, L-1, and M). In asserted full compliance with the district court's order, appellee has produced five boxes of documents.
After moving unsuccessfully for reconsideration by the district court, the Independent Counsel pursues this appeal, asserting entitlement to any documents still in appellee's possession "that were generated or obtained in connection with [appellee's] employment at HUD." 3
A deferential standard of review applies to rulings on subpoenas for production of documentary evidence; an appellate court will not reverse the district court's ruling unless it is arbitrary or lacks record support. United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974). We are not yet positioned to apply this standard to portions of the district court's order allowing appellee to withhold documents.
The district court's ruling relied upon appellee's ex parte submission, which described fourteen categories of documents but did not include the documents themselves. The court accepted these categorical descriptions as adequately informative and did not direct production of any of the documents in categories A, B, L-1, and M, or any in categories C-K that appellee may have decided were not official records. Although counsel for appellee initially objected to any production of the documents, counsel later stated that he would present "any and all documents" for the district court's in camera review upon telephone notice. The court did not undertake in camera review, however, and the Independent Counsel, even now, does not know what the alphabetical labels indicate.
A reviewing court, in these circumstances, is unable to determine whether the trial court's ruling is reasonable, i.e., supported by the record and not arbitrary. The district court, as just observed, engaged in no factfinding from the documents themselves; the court neither saw the documents nor heard testimony, in open court or in camera, regarding the nature and use of the undisclosed documents. Because the district court accepted a blindfold, it was unable to set down reasons, capable of review, for designating certain documents as government records and others as personal papers. See, e.g., Grand Jury Subpoena Duces Tecum Dated April 23, 1981 Witness v. United States, 657 F.2d 5, 7-8 (2d Cir.1981).
In addition to checking the documents themselves, the trial judge might have gained reliable information about them by taking testimony from the subpoenaed witness and others concerning the nature, purpose, and use of the documents. For example, a personal secretary's testimony may be helpful in determining whether a calendar was kept simply as a personal convenience or was used by others in the agency in the conduct of their work. See In re Grand Jury Subpoena Duces Tecum Dated April 23, 1981, 522 F.Supp. 977, 979 (S.D.N.Y.1981) (). At the very least, in a case such as the one before us, the district court should not rest on counsel's categorical groupings; the court should see the documents as to which the characterization "government record" or "private record" is genuinely in contention, and say why particular documents qualify as government records not subject to the Fifth Amendment privilege or, instead, as personal records for which the privilege may be invoked. See United States v. Wujkowski, 929 F.2d 981, 984 (4th Cir.1991) ().
We appreciate that the documentary and perhaps witness examinations in order in this case may be arduous for the district court. We see no way other than actual inspection, however, for the trial court reliably to determine the nature of particular documents, and to provide a record and reasoned decision for appellate review. If documents are so sensitive that the district court cannot publish reasons for the court's disposition without revealing information legitimately kept confidential, the court can seal the decision, thus preserving it for the court of appeals' consideration. The trial court, however, should endeavor to expose as much of the process as possible to informed argument from both parties.
Two issues remain before us at this time. First, appellee contends that even if the documents sought by the Independent Counsel are government records, appellee can still assert a privilege based on the incriminating nature of the very act of producing those documents before the grand jury. Second, appellant asserts that the district court failed to recognize the full scope of the government records exception.
Neither the government or official records exception nor the analogous corporate records exception to an individual's Fifth Amendment protection is of recent vintage. 4 In a pathmarking decision concerning corporate records, Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), the Supreme Court stated that
physical custody of incriminating documents does not of itself protect the custodian against their compulsory production.... Thus, in the case of public records and official documents, made or kept in the administration of public office, the fact of actual possession or of lawful custody would not justify the officer in resisting inspection, even though the record was made by himself and would supply the evidence of his criminal dereliction.
Subsequent decisions indicate that these exceptions to the Fifth Amendment privilege apply not only where the contents of the public or corporate documents might incriminate the possessor but also where the very possession of documents (and hence their production) might be incriminating. See Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (194...
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