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Federal Election Commission v. Christian Coalition

May 12, 1998

FEDERAL ELECTION COMMISSION, PLAINTIFF,
v.
THE CHRISTIAN COALITION, DEFENDANT.



The opinion of the court was delivered by: Joyce Hens Green, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is a request to enter a stipulated protective order between plaintiff Federal Election Commission ("FEC") and a non-party, The Christian Broadcast Network ("CBN"). The proposed order would limit disclosure of documents that have been ordered to be produced pursuant to a subpoena that FEC caused to issue to CBN's accountants, Coopers & Lybrand in the Eastern District of Virginia. See Federal Election Comm'n v. The Christian Coalition, 1998 WL 167257, F.R.D. , (E.D. Va. Apr. 10, 1998).

Joint motions for protective orders have become an increasingly common, almost routine, practice. But such motions should not be granted routinely. The business of the federal courts is the public's business -- this is not a private dispute resolution service -- and only if another public policy favors non-disclosure should such an order be issued. Reluctantly, the Court will sign the proposed Order, but the reasons and the legal basis for doing so should be made a matter of public record.

BACKGROUND

As part of its discovery efforts in this matter, the FEC has sought information about the relationship between The Christian Coalition and CBN. As part of that effort, on July 30, 1997, the Federal Election Commission ("FEC") caused to issue in the Eastern District of Virginia a subpoena duces tecum to CBN's accountants, Coopers & Lybrand ("C&L"). The subject of the subpoena are "all documents . . . which in any way relate or refer to Christian Coalition from 1989 to the present."

C&L possesses documents responsive to the subpoena. Some documents were produced to the FEC; approximately 90 documents were withheld because CBN had asserted claims of attorney-client privilege or attorney work product immunity from disclosure. The basis for the claim is that CBN was engaged in litigation with the Internal Revenue Service regarding CBN's tax status. That dispute has recently been settled. See FEC v. CC, 1998 WL 167257 at *1 n.1. On October 7, 1997, the FEC filed a motion to compel production of the 64 documents that had been withheld under the work product doctrine in the Eastern District of Virginia ("the Virginia action").

CBN's first response to the subpoena was to move to intervene in the Virginia action so as to litigate its work product claims. The FEC did not oppose that intervention. On October 17, 1997, Magistrate Judge Miller, who presided over the Virginia action, granted CBN leave to intervene and accorded it the "rights of a party including the right to appeal any final judgment of the Court." Federal Election Comm'n v. The Christian Coalition, Misc. No. 2:97MC42, (E.D. Va. Oct. 17, 1997).

Having successfully been granted the right to raise and litigate its claims, CBN nevertheless filed a motion on October 22, 1997 in this civil action to intervene for the limited purpose of litigating the same claims of work product immunity. The motion was denied as moot. See Federal Election Comm'n v. The Christian Coalition, No. 96-1781 (D.D.C. Feb. 3, 1998) (Mem. Op.).

The present status of the Virginia action is that some documents were held not to be discoverable because they were privileged or were work product and others were held discoverable because the FEC had shown it was entitled to certain non-opinion work product documents under Rule 26(b)(3) of the Federal Rules of Civil Procedure. See Federal Election Comm'n v. The Christian Coalition, 1998 WL 24253, F.R.D. , (E.D. Va. Jan. 23, 1998), aff'd and modified in part by 1998 WL 167257(E.D. Va. Apr. 10, 1998). CBN has appealed that ruling, and simultaneously sought a protective order from this Court, pursuant to FED. R. CIV. P. 26(c), in the event that the Fourth Circuit affirmed the Order requiring production. CBN's motion makes clear that a motivating factor for the motion is press interest in the documents. See CBN Mem. at (2) ("Due to intense press interest in these documents . . . it is essential that protective provisions be in place before the documents are received by the FEC . . . .").

ARGUMENT(S)

The Federal Rules of Civil Procedure do not squarely address the situation presented by the pending motion. Rule 26(b)(3) provides that documents

prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative . . [may be discovered] only upon a showing that the party seeking discovery has substantial need of the materials . . . and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

FED. R. CIV. P. 26(b)(3). This is a codification of the qualified immunity for trial preparation materials recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). See FED. R. CIV. P. 26 advisory committee's notes (1970 Amendment).

The text of the rule leaves three noticeable gaps: (1) whether work product protection extends to materials prepared for any litigation or to only materials prepared for the litigation that generated the work product; (2) whether work product protection survives termination of the litigation that generated the work product; and (3) whether materials prepared by or for a non-party for separate litigation should be treated as work product in subsequent or parallel litigation. See Federal Trade Comm'n v. Grolier, 462 U.S. 19, 26, 76 L. Ed. 2d 387, 103 S. Ct. 2209 (1983) (discussing relation between Rule 26(b)(3) and FOIA exemption 5); 8 WRIGHT ET AL., FEDERAL ...


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