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BLACK PANTHER PARTY v. LEVI

January 25, 1980

THE BLACK PANTHER PARTY, ET AL., Plaintiffs v EDWARD LEVI, ET AL., Defendants


The opinion of the court was delivered by: SMITH, JR.

MEMORANDUM

The Black Panther Party along with some of its members and supporters bring this action against the United States, former and current high-ranking officials of several government agencies, and a former White House Assistant, contending that the defendants conspired to destroy the Party. The matter is before the Court on defendants' motion for the sanctions of dismissal and costs because plaintiffs have allegedly failed to comply with this Court's order dated August 6, 1979. On the grounds that their earlier responses were internally inconsistent, contradictory, and evasive, the August 6 order compelled plaintiffs to provide further answers clarifying previous answers, explaining inconsistencies noted by the defendants, or stating under oath that they were without further knowledge if that were the case; to have the Party's officers individually review specified interrogatories and provide whatever responsive information each might have; to file further responses based on a complete review of the plaintiffs' publication, the Black Panther, with respect to every issue presented by the plaintiffs' allegations; to choose between continuing to assert a claim of constitutional privilege or proceeding with this suit; and finally, in the case of plaintiff Mr. Huey Newton, either to give further answers to certain interrogatories or to withdraw his claims related to them.

 Compliance with the August 6 order

 1. The plaintiffs shall file further responses to forty four specified interrogatories, clarifying previous answers, explaining inconsistencies referred to by the defendants, providing further information, or stating under oath that they are without further knowledge of these matters.

 The answers are fatally defective in several respects. In some instances not only do they fail to clarify previous answers, they create further confusion. In other instances they either completely ignore the inconsistencies the Party was directed to address or they introduce new information inconsistent with that already given in this case and with information given under oath by another member of the Party officially authorized to speak on its behalf, Mr. Huey Newton. The new supplemental answers fail to comply with the requirements of this Court's August 6 order.

 2. The plaintiffs shall direct Party officers who have responsive information to answer personally and under oath 107 specified interrogatories.

 The plaintiffs refuse to comply with this directive. They continue instead to press the argument raised prior to this Court's August 6 order, that Rule 33 allows a private association to name an agent to furnish such information as is available.

 The doctrine of the "law or rule of the case" does not always compel rigid adherence to a prior decision in a given case. Nevertheless, once an issue is litigated and decided, absent some good reason why a prior ruling is inapplicable or should no longer be followed, that ruling should stand. Naples v. U. S., 123 U.S.App.D.C. 292, 293, 359 F.2d 276, 277 (D.C.Cir. 1966). There has been no such showing in the present case. The reasons set out in the August 6 order are still valid and justify this Court's discretionary requirement that the individual officers of the Party respond to particular interrogatories: records are admittedly scarce, a considerable time has elapsed since the alleged occurrences, and many witnesses are scattered or no longer available. The quality of subsequent discovery has underlined the propriety of this ruling. As noted above, the supplemental answers filed by the Party's new agent continue to be unclear, contradictory, and internally inconsistent. The plaintiffs are once again not in compliance with the Court's explicit order.

 3. The plaintiffs shall choose between continuing to assert a claim of constitutional privilege or proceeding with this lawsuit.

 The Party continues to urge its claim of first amendment privilege with respect to the names of Central Committee members not previously disclosed (Interrogatory 21), the identity of local leaders of Party affiliates except those published in the Black Panther (Interrogatory 33), and the names of individual Party members not already publicly known (Interrogatory 61). Because of the special character of this litigation, which involves a suit brought several years after the alleged events by plaintiffs who have lost or destroyed almost all the relevant documents, the identity of these individuals is critical to the parties sued. These may well be the individuals able to provide defendants with the information necessary for their defense even to the point of telling them exactly what they are accused of doing. The plaintiffs cannot choose to be litigants and at the same time exempt themselves from the rule of law that binds all federal litigants. They cannot, that is, assert the privilege and at the same time proceed with this lawsuit. Anderson v. Nixon, 444 F. Supp. 1195, 1199 (D.D.C.1978); See, e.g., Independent Productions Corp. v. Loew's, Inc., 22 F.R.D. 266, 276-77 (S.D.N.Y.1958); 4 J. Moore, Federal Practice P 26.60(6) at 252-54 (2d ed. 1979).

 4. The plaintiffs shall file further responses based on a complete review of the Party's publication, the Black Panther, with respect to every issue presented by the plaintiffs' allegations.

 5. Mr. Huey Newton shall either give further answers to certain interrogatories or withdraw his ...


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