are not privileged. Rosee v. Board of Trade, supra ; United States v. Procter & Gamble, supra; cf., Sterling Drug v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698 (1971). Likewise, any evidence which refutes this allegation can not be privileged. See United States v. Procter & Gamble Co., supra, 25 F.R.D. at 490.
The Defendant also claims that disclosure of these documents would be detrimental to the public's interest in effective law enforcement since the documents are part of an "investigatory file." This argument is without merit in this case. The sole basis for nondisclosure of investigatory files lies in Section 552(b) (7) of Title 5 of the United States Code (Freedom of Information Act). The specific exemptions under the Freedom of Information Act are extremely narrow, and documents classified as investigatory files are not per se exempt. Bristol-Myers Co. v. FTC, 138 U.S. App. D.C. 22, 26, 424 F.2d 935, 939, cert. denied 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52 (1970). The legislative purpose for the exemption was to prevent premature disclosure of files "prepared in connection with related Government litigation and adjudicative proceedings." H.R. Report No. 1497, 89th Cong., 2d Sess. at 11, U.S. Code Cong. & Admin. News 1966, pp. 2418, 2428. The question then is whether the documents relate to that which can be fairly described as an enforcement proceeding. Bristol-Myers, supra. In this case, the investigation was admittedly not related to a law enforcement proceeding, but was conducted simply for "intelligence purposes." See Attorney General's Affidavit, page 3 par. 5. Furthermore, it has been over ten years since the surveillance has been conducted, and the Defendant has not brought an action against the Plaintiff and admits all investigation for any possible action has been long since concluded. Under these circumstances, the investigatory file exemption is obviously not applicable.
There can be no harm to effective law enforcement by allowing the Plaintiff access to the documents ordered to be produced. In criminal cases, which have considerably more stringent discovery rules, the courts have required disclosure of information obtained by illegal electronic surveillance when it would assist the defense. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969); see also Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). The information sought here is necessary for the just adjudication of this case. It is solely within the possession of the party whom the Court has found liable to the Plaintiff. The Defendant can not now attempt to escape its liability by withholding necessary information, information relating to its misconduct and illegal acts.
Having made a careful balance of the interests involved, the Court finds the need for the evidence outweighs any arguable harm that could result from disclosure. As the Defendant has failed to comply with the Court's order without a recognizable claim of executive privilege, the Court's only recourse is to impose sanctions under Rule 37 of the Federal Rules of Civil Procedure. Therefore, pursuant to the authority of Rule 37(b) (2) (A), the Court shall deem the following facts as established for the purposes of this case: (1) That the FBI reports or the information contained therein caused the Plaintiff to lose his employment as a Washington representative for major national corporations; (2) That the FBI reports or the information contained therein have destroyed the Plaintiff's livelihood and permanently impaired his ability to obtain employment; (3) That the FBI reports or the information contained therein have greatly damaged the Plaintiff's name and reputation and have caused him the loss of friends and business associates; and (4) That the FBI reports or the information contained therein have caused the Plaintiff great mental pain and suffering, embarrassment and humiliation.
The Court shall deny the Plaintiff's Motion for a Protective Order in that the Plaintiff has not made a sufficient showing of good cause in light of the Court's rulings today and earlier this month. The Motion is denied, however, without prejudice to the Plaintiff's renewal of the same.
An Order of even date is entered in accordance with this opinion.