Tuite v. Henry, 95-5375

• Decision Date: 01 November 1996
• Docket Number: No. 95-5375,95-5375
• Citation: 98 F.3d 1411
• Parties: , 35 Fed.R.Serv.3d 1135 Patrick A. TUITE, et al., Appellants, v. Mark HENRY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1411

98 F.3d 1411

321 U.S.App.D.C. 248, 35 Fed.R.Serv.3d 1135

Patrick A. TUITE, et al., Appellants, v. Mark HENRY, et al., Appellees.

No. 95-5375.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 6, 1996.

Decided Nov. 1, 1996.

Appeal from the United States District Court for the District of Columbia (No. 94ms00268).

Courtney C. Nottage, Chicago, IL, argued the cause for appellants, with whom William J. Harte was on the briefs.

John P. Schnitker, Attorney, Washington, DC, U.S. Department of Justice, argued the cause for appellee, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Leonard Schaitman, Attorney, U.S. Department of Justice, were on the brief.

Before: EDWARDS, Chief Judge, WILLIAMS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

The Office of Professional Responsibility of the Department of Justice ("OPR") conducted an investigation into allegations that someone had illegally taped privileged attorney-client conversations during the preparation of the clients' defense to charges that they had engaged in a pattern of racketeering activity. The results of the OPR investigation were placed under seal and not released to the parties during the criminal trial. After the criminal trial ended, the lawyers whose conversations had been taped filed a civil suit in federal district court in the Northern District of Illinois against some employees of the Department of Justice, claiming that the taping violated federal law and their constitutional rights. Tuite v. Henry, No. 93-C-3248 (N.D. Ill. filed May 28, 1993).

In the course of the civil case, the lawyers subpoenaed the documents relating to the OPR's investigation of the taping. Relying on the law enforcement investigatory privilege, a qualified privilege that protects against the release of documents whose disclosure might reveal law enforcement investigative techniques or sources, the OPR refused to comply with the subpoena. The lawyers then filed a motion in the federal district court in Washington, D.C., to compel the OPR to produce the documents. Plaintiffs' Motion to Comply with Subpoena Dated July 20, 1994, Tuite v. Henry, Misc. No.94-268 (D.D.C. Oct. 6, 1995), reprinted in Joint Appendix ("J.A.") 4. The District Court upheld the OPR's claim of privilege, finding: (1) that it had been properly raised; and (2) that appellants did not make the requisite showing of need to overcome the Government's claim of privilege. Tuite v. Henry, Misc. No. 94-268 (D.D.C. Oct. 6, 1995), reprinted in J.A. 161-66.

We affirm as reasonable the District Court's determination that the Government properly raised its claim of privilege. On the record before us, it is clear that the Government objected to the subpoena within fourteen days after service, as required by Federal Rule of Civil Procedure 45(c)(2)(B), and then filed a claim of privilege supported by a detailed description of the documents withheld, as required by Federal Rule of Civil Procedure 45(d)(2). However, we find that the District Court abused its discretion in holding that the documents are protected from disclosure under the law enforcement investigatory privilege. In reaching this conclusion, the District Court appears to have misunderstood appellant's need for the documents. More importantly, the trial court accorded too much weight to a narrowly defined "need" factor and failed to address other relevant factors. See In re Sealed Case, 856 F.2d 268, 272 (D.C.Cir.1988) (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), cited in Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342-43 (D.C.Cir.1984)).

I. BACKGROUND

A. The Infelise Case and the OPR Investigation

This case arises out of a civil case pending in the United States District Court for the Northern District of Illinois. Tuite v. Henry, 93-C-3248 (N.D. Ill. filed May 28, 1993). Appellants, defense lawyers and plaintiffs in that case, are suing appellees, employees of the Department of Justice, claiming that appellees violated federal wiretapping law and the Constitution by recording or attempting to record conversations between appellants and their clients.

At the time the taping occurred, appellants were serving as defense counsel in a criminal action in the Northern District of Illinois before United States District Court Judge Ann Williams. See United States v. Infelise, 835 F.Supp. 1466 (N.D.Ill.1993). During their preparations for the criminal trial, appellants and their imprisoned clients were given access to a private room at the Chicago Metropolitan Correctional Center ("MCC") to discuss trial strategy. Despite appellees' assurances to the contrary, appellants discovered that someone was monitoring their "private" conversations at the MCC. This discovery was made when an unidentified person provided appellants with recordings of attorney-client conversations in the MCC room. See United States v. Infelise, No. 90 CR 87, 1991 WL 246575, at * 1 (N.D.Ill. Sept.25, 1991) (mem.). In response to appellants' complaints, the OPR investigated the taping and prepared reports that are now the subject of this subpoena-enforcement action. In the criminal action, Judge Williams ordered the OPR's reports sealed, rejecting disclosure requests by appellants, see, e.g., United States v. Infelise, 90 CR 87 (N.D. Ill. May 23, 1994) (order), reprinted in J.A. 132-33, and she determined that "the report [did] not contain any evidence that [was] favorable to the defense or the prosecution," United States v. Infelise, 90 CR 87, slip op. at 9 (N.D. Ill. Sept. 24, 1992) (mem.), reprinted in J.A. 79, 87. The Seventh Circuit agreed that the investigation had been "totally inconclusive." United States v. DiDomenico, 78 F.3d 294, 298-99 (7th Cir.1996).

B. The Chicago Civil Action and the Subpoenas

After their clients were convicted, appellants filed a civil action in the Northern District of Illinois. Appellants claimed that the taping violated their rights under the Constitution and federal wiretapping law. During discovery, appellants first served a subpoena on the principal legal advisor to the Chicago office of the FBI, requesting documents related to the taping of attorney-client conversations at the MCC. The legal advisor provided some documents, but otherwise indicated that he could not furnish most of the material sought by appellants, because the reports at issue were part of an investigation file controlled by the OPR in Washington, D.C.

On July 1, 1994, Michael Shaheen, counsel to the OPR, received, via certified mail, a request for documents relating to the alleged taping. Shaheen rejected this subpoena, because it was served via mail rather than in person. On July 21, 1994, appellants personally served Shaheen with a second subpoena requesting the same documents. In a letter dated August 3, 1994, an OPR attorney advised appellants that "it appears that the documents requested are privileged or otherwise not subject to disclosure. See FED.R.CIV.P. 45(c)(3)." Letter from Peter D Coffman, Attorney, Civil Div., U.S. Dep't of Justice, to William J. Harte (Aug. 3, 1994), reprinted in J.A. 77. This August 3 letter relied on "the law enforcement investigatory privilege" and the "deliberative process privilege" as the reasons for the OPR's failure to comply with the subpoena. ¹

On August 19, 1994, appellants filed a motion in the United States District Court for the District of Columbia to compel compliance with the subpoena. Plaintiffs' Motion to Comply with Subpoena Dated July 20, 1994, Tuite, Misc. No. 94-268, reprinted in J.A. 4. On September 9, in opposition to the motion to comply, appellees filed a reply that included "the Shaheen Declaration," describing each document withheld and the type of privilege the Government claimed. Office of Professional Responsibility's Opposition to Plaintiffs' Motion to Comply with Subpoena Dated July 20, 1994, Tuite, Misc. No. 94-268, reprinted in J.A. 90.

The District Court denied the motion to comply, finding that the Government had properly raised its claims of privilege and that appellants had not demonstrated sufficient need to overcome the Government's defenses against disclosure. Tuite, Misc. No. 94-268, reprinted in J.A. 161-66. The trial court dismissed appellants' action without prejudice, indicating that appellants could renew their claim upon a more fully developed showing of need. Id. at 166.

C. The Appellants' Motion to Strike Portions of Appellees' Brief or Alternatively to Consider Declarations

When appellants filed their reply brief with this court, they also filed a motion to strike portions of appellees' brief or, in the alternative, to consider declarations. Motion to Strike Portions of Brief, or Alternatively Consider Declarations, Tuite v. Henry, No. 95-5375 (D.C.Cir. motion filed July 16, 1996). Appellants claimed that appellees made the following two factual errors in their brief: first, appellees asserted that appellants, in the course of the criminal proceeding, had been supplied a list of people who had access to their "private" room at the MCC; second, appellees stated that appellants had failed to conduct even "the most rudimentary discovery." Id. at 1-4 (citing Brief for OPR at 7, 12, 23-26). Appellants' motion demonstrates that the Government's claims on these points are erroneous. Accordingly, appellants ask this court to strike the errors or, alternatively, to accept their declarations to show (1) that no list was ever provided to appellants and (2) their futile attempts at discovery. Appellees oppose the motion to strike as a tardy attempt to introduce new evidence. Opposition to Motion to Strike Portions of Brief or, Alternatively, to Consider Declarations, Tuite v. Henry, No. 95-5375 (D.C.Cir. opposition filed July 23, 1996). This court deferred decision on the motion pending oral...