The opinion of the court was delivered by: SIRICA
The Court has before it for reconsideration a motion filed by the Attorney General of the United States, through his attorney, to quash a subpoena duces tecum served upon his representative on January 20, 1964. The subpoena requests the production of certain documents at a deposition proceeding which was to have been conducted on January 27, 1964, as part of the National Discovery Program in connection with the electrical equipment antitrust cases.
In general, the documents sought consist of every letter, memorandum or other written communication, and all notes, memoranda, or other records of each oral communication, during the period between January 1, 1948, and December 31, 1960, which were made to or which are under the control of the Department of Justice, in which any distributor of electricity, group of distributors, or engineering consultant or firm thereof, or any officer, agent or employee of the same, complained, alleged, suggested or otherwise asserted that there may have been price fixing or other violations of the antitrust laws in the electrical equipment industry.
The defendants are seeking to obtain information from the Department of Justice files which might indicate knowledge on the part of the plaintiffs that a conspiracy to violate the antitrust laws existed for more than four years before the plaintiffs filed their treble damage actions. This information is sought in order to establish a defense to the plaintiffs' claims that they should recover damages for transactions occurring beyond the four year period of limitations
because the defendants have fraudulently concealed the alleged conspiracy. This Court, and our Court of Appeals, have held that the running of the four year statute of limitations applicable to treble damage antitrust suits is tolled by fraudulent concealment on the part of the defendants. See City of Burlington, Vermont v. Westinghouse Electric Corp., 215 F. Supp. 497 (D.D.C. 1963), aff'd, 117 U.S. App. D.C. 148, 326 F.2d 691 (1964). Since one recognized defense to an allegation of fraudulent concealment is that the plaintiff knew, or by the exercise of due diligence could have known, that it may have had a cause of action, the documents requested may be relevant to the disposition of claims in hundreds of treble damage actions pending throughout the country which involve large sums of money.
On February 14, 1964, this Court entered an order quashing the defendants' subpoena duces tecum on the grounds that it was burdensome and oppressive, and that the documents sought were protected by the informer's privilege, as defined in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). An appeal was taken from this order to the United States Court of Appeals for this Circuit wherein it was reversed and the case was remanded to this Court for further proceedings.
In reversing, the Court of Appeals stated:
The lower court's action in quashing the subpoena was in our view "improvidently taken " and it "affected the substantial rights of the parties."
While this Court welcomes an interpretation of Roviaro by our Court of Appeals, it cannot agree with that Court that its action in quashing the subpoena was "improvidently taken." When the Court decided that defendants' subpoena should be quashed, it had given considerable thought and attention to the rights of all of the parties. At that time, numerous electrical equipment cases were pending before this Court with discovery in progress. Furthermore, pre-trial proceedings had been taking place in the City of Burlington case, in which a trial of more than two months' duration was subsequently held.
In addition, this Court has cooperated with the Co-Ordinating Committee for Multiple Litigation, which was established by the Judicial Conference of the United States, as a Sub-committee of its Committee on Pre-Trial Procedure and Practice, to deal with the complex problems raised by the hundreds of electrical equipment antitrust cases. This Court has followed the work of the Sub-committee with great interest, and since March of 1962, has attended seven meetings of the Judges before whom electrical equipment cases were pending. Moreover, this Court has presided over many deposition proceedings in connection with the National Discovery Program instituted by the Sub-committee. Consequently, when the Court entered its order that the defendants' subpoena be quashed, it was well aware of the importance of the electrical equipment cases generally, and of this subpoena in particular. Prior to its decision, this Court heard oral argument by both the defendants and the Department of Justice and in reaching its decision, gave most careful consideration to both the arguments and the memoranda and authorities submitted by the parties in support thereof. This Court was ever conscious of the effect its decision on this motion would have upon the electrical equipment cases throughout the country. On the other hand, the Court was also cognizant of the precedent which might be set by allowing a wholesale examination of Government files. It was only after a most thorough consideration of all the factors involved and the issues raised that the Court concluded that the public interest in encouraging the free flow of information to law enforcement officials out-weighed the interest of the defendants in obtaining the documents they sought. Furthermore, the Court feels that its decision to grant the motion to quash the subpoena was proper at the time it was made, in view of the Court's narrow interpretation of Roviaro.
In an attempt to comply with the mandate of the Court of Appeals, the Court has held two hearings. At these two hearings, the question of the extent of the search to be undertaken by the Department of Justice was discussed, along with the contentions of both parties as to the applicability of the informer's privilege. As a result of these hearings and a search of its files undertaken by the Department of Justice, certain documents have been submitted to the Court for an in camera inspection. In addition, memoranda have been submitted by both sides outlining their respective positions as to what classes of documents should, or should not, be turned over to the defendants. However, before the Court indicates which, if any, of these documents should be disclosed, it will set forth the guidelines it has followed in reaching its decision.
The term informer's privilege is actually a misnomer. This privilege is really the Government's privilege to withhold from disclosure the identity of persons who furnish the Government with information as to violations of the law.
It is intended to protect the Government's sources of information and thereby facilitate the administration and enforcement of the law. By preserving the anonymity of persons who furnish information to the Government and thus protecting them from reprisal and resentment, the privilege recognizes, and encourages the fulfillment of, the obligation of every citizen to cooperate in the enforcement of the law, and consequently, in the preservation of an ordered society.
At one time, the informer's privilege was considered to be an absolute one. To quote the Supreme Court of the United States:
It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and . . . a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government . . . .
The absolute nature of this privilege has subsequently been rejected by the United States Supreme Court. In Roviaro v. United States, supra, the Court, while recognizing the existence of the policy behind the privilege, pointed out that 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.
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the ...