TIMES NEWS. LTD.(GR. BRIT.) v. McDonnell Douglas Corp.

• Decision Date: 02 December 1974
• Docket Number: No. CV 74-2658-PMH.,CV 74-2658-PMH.
• Citation: 387 F. Supp. 189
• Court: U.S. District Court — Central District of California
• Parties: TIMES NEWSPAPERS LIMITED (OF GREAT BRITAIN) v. McDONNELL DOUGLAS CORPORATION et al.

387 F. Supp. 189

TIMES NEWSPAPERS LIMITED (OF GREAT BRITAIN) v. McDONNELL DOUGLAS CORPORATION et al.

No. CV 74-2658-PMH.

United States District Court, C. D. California.

December 2, 1974.

Mark E. Hurwitz, Hurwitz & Hurwitz, Orange, Cal., for plaintiff.

Robert C. Packard, Kirtland & Packard, Los Angeles, Cal., James M. Fitz-Simons, Mendes & Mount, New York City, Joseph R. Austin, Tuttle & Taylor, Los Angeles, Cal., for defendants.

James G. Butler, Butler, Jefferson & Fry, W. Marshall Morgan, Morgan, Wenzel & McNicholas, Los Angeles, Cal., for amicus curiae.

ORDER

PEIRSON M. HALL, District Judge.

This is a diversity suit, 28 U.S.C. §§ 1331 and 1332, whereby the plaintiff a citizen of England, seeks declaratory relief (28 U.S.C. §§ 2201 and 2202) and an injunction.

The plaintiff is the publisher of "THE SUNDAY TIMES OF LONDON," and the defendants are the lawyers for/and McDonnell Douglas Corporation, a defendant in many suits pending under MDL Docket #172 (28 U.S.C. § 1407) for the crash of a McDonnell Douglasmade plane near Paris on March 3, 1974, killing all human beings aboard, about 350, and destroying the plane. A faulty product by McDonnell Douglas is alleged as the cause of the crash.

The plaintiffs in the death cases and McDonnell Douglas and other defendants have been diligently engaged in discovery by deposition since shortly after the suits were filed.

The plaintiff seeks by this suit a declaratory judgment that its representatives are entitled to be present at all depositions and to publish their reports of what occurred; and upon such declaratory judgment seek an injunction pendente lite to restrain defendants' lawyers from preventing the presence of plaintiff's reporters at the taking of depositions which are being taken with the agreement of the parties and the approval of the court at the office of defendant Packard.

The defendants, in addition to filing a motion to dismiss on the ground that the complaint does not state a claim for relief, have filed copious, but not well organized, briefs, citing many cases, few of which are in point.

The heart of the question is whether or not the provisions in the First Amendment to the United States Constitution providing that "Congress shall make no law . . . abridging the freedom . . . of the press" override the provisions in the Federal Rules of Civil Procedure, specifically, those in 30 (f) which provide that the deposition shall be "securely sealed" and mailed to or filed with the Court, and of the Local Rule which requires the Clerk to reseal the deposition after the Clerk has checked to see whether or not the original deposition has been signed by the deponent and certified by the notary. If they must be "securely sealed," then they must be securely kept from the press as well as others, and the taking of them does not permit the public or press to be present except as permitted by F.R. Civ.P. 26(c)(5).

Aside from the main point, there are other matters raised which should be disposed of before reaching it.

The first one made by the defendants is that the plaintiff being a citizen of another Country has no access to the judicial power of the United States Courts to enforce any rights.

This point is disposed of adversely to the defendants' position not only by the Constitution itself which provides in Article 3, Section 2, that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . between . . . the Citizens of a State and foreign States, Citizens, or Subjects"; as well as by Title 28 of the United States Code, Section 1332 providing for diversity jurisdiction in amounts exceeding $10,000 where the action is between "citizens of a State, and foreign states or citizens or subjects thereof," as well as a long line of cases beginning with The Sapphire, 78 U.S. (11 Wall) 164, 20 L.Ed. 127 (1870). The court states, in that case, on that proposition, the following:

"The first question raised is as to the right of the French Emperor to sue in our courts. On this point not the slightest difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts. To deny him this privilege would manifest a want of comity and friendly feeling. Such a suit was sustained in behalf of the King of Spain in the third circuit by Justice Washington and Judge Peters in 1810. The Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects, without reference to the subject-matter of the controversy." (italics supplied)

The 9th Circuit in 1972 was just as positive in Sam Andrews' Sons v. Mitchell, 457 F.2d 745, at page 749, where it said: "Any person within the United States whether citizen or alien, resident or non-resident, is protected by the guarantees of the Constitution." (italics supplied)

The 11th Amendment of the Constitution which came into being as a result of the Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall) 419, 1 L.Ed. 440 (1793) modifies Article 3, Section 2, above quoted, only by prohibiting suits "against" one of the United States by citizens of another state, or by citizens or subjects of foreign states. Thus the plaintiff cannot be barred from bringing this suit because it is an alien.

It is of great significance that the 11th Amendment, adopted shortly after the Constitution, uses the word "against" as contrasted with the word "between" as is used in Article 3, Section 2. "Between" makes no distinction as to whether one is plaintiff or defendant, whereas "against" would apply to and prohibit the judicial power only from being used "against" a state of the United States.¹

The defendants claim that the First Amendment does not give "free speech" to a foreign newspaper. The reasoning is as obscure as the case they cite in support of it is inapplicable, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1973). But, as nearly as I can figure, their position is that "freedom of the press" referred to in the Amendment I is only that press which is published in America for American readers, and that inasmuch as plaintiff is published in England for English readers, they have no rights here. The complaint alleges that it is an English corporation: it alleges jurisdiction under 28 U.S.C. § 1332(a)(2) which permits suit by "citizens" of foreign states. Thus, the complaint by implication alleges that it is a citizen of England. In any event, it is a "foreign subject" specifically permitted access to our courts by Article III, Section 2 of the United States Constitution. The point is without foundation.

Other reasons assigned by the defendants as to why the plaintiff should have no relief are because (1) the plaintiff comes into court with "unclean hands," in that the plaintiff has been found guilty of contempt by Parliament for publication of articles which were unfriendly to those who were defendants in the Thalidomide case, and (2) that the plaintiff's employees in this case are disclosing information to counsel for the plaintiffs in the crash cases and have obtained copies of depositions even before they have been signed.²

It ill becomes the defendant to come in and talk about the plaintiff having unclean hands. The assertion that plaintiff was found guilty of contempt by the House of Lords is not true, and the defendant with the slightest research could have found it to be, or knew, so. The fact is that the plaintiff prepared an article for publication and submitted it to the Attorney General. As required by English law, he took it before the Courts, and one of the Appeals Courts reversed the injunction against the article which had been granted by the lower court. The plaintiff did not, however, publish the article but, instead, voluntarily consented that the matter should be heard by the House of Lords as to whether or not the article should be published. The matter was extensively debated, and the House of Lords found that if the plaintiff published the article it would be contemptous. The article was never published. The Attorney General even waived costs against the Times because he said they had been "fully cooperative." Furthermore, defendants in their briefs assert that Elaine Potter wrote the article under consideration, which is denied by her affidavit.

As to the accusation that the employees of the plaintiff in this case disclosed information to the plaintiffs' counsel in the death cases, there is nothing unusual about that, except perhaps that their disclosure was limited to counsel for the plaintiffs in the death cases and did not make disclosures to the defendants. It is customary in the preparation of a lawsuit for the lawyer to seek information wherever he can get it. It is particularly necessary in the death cases as the decedents' next of kin have no information — the defendants have it all, and are securing writs which prevent, in my judgment, the proper procedures to be taken to assure due process to the next of kin of those who were killed in the disaster and who are scattered in 20 countries of the world. Testimony by plaintiff's witnesses indicated there were approximately a thousand next of kin claimants. They were not cross-examined on that point, nor did defendants produce any evidence thereon. The plaintiffs may be aliens, but they are "persons" and the Constitution of the United States grants the rights of "persons" to due process in this country and access to our courts.³

The defendants also claim a possible prejudice to a fair trial because what is sent to plaintiff in England may be relayed back locally under contract with United States publishers and get to the eyes of possible jurors. The testimony at the hearing in this court, which took several days,...