REV. STAT. § 161. The claim of privilege was rejected, and thereafter the Government filed a formal claim of privilege and urged, in addition to REV. Stat. § 161, that the airplane in question was testing secret military equipment. The District Court ordered the documents produced. When the Government persisted in its refusal the court entered an order in favor of the plaintiffs under Rule 37 (b) (2) (i) of the Federal Rules of Civil Procedure.33 A final judgment was entered for the plaintiffs after testimony covering damages. The Court of Appeals affirmed.34 The Supreme Court reversed and remanded the case. In this case, although the allegation of privilege was also made under Rev. STAT. § 161, the Supreme Court grounded its findings of privilege upon the safeguarding of military secrets.35 In its discussion, the court announced a formula for determining questions of privilege.36 "... Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers." (Emphasis supplied.) The Supreme Court first of all relieved Cabinet officers, department heads and agencies of the right to determine, without more, what is privileged. A claim of privilege based upon military secrets has been rendered relatively easy to decide. Courts can find sufficient comfort in this case to take judicial notice of the fact that such secrets exist, that the matter under advisement might be one of them, and therefore the Judge had better not look at it. However, privileges claimed pursuant to rules and regulations adopted under REV. STAT. § 161 or particular statutes involving regulatory agencies present less clear and more difficult problems. A recent lower court case typical of the problem which may confront a federal department or agency when it seeks to enforce the law is Mitchell v. Roma et al.,87 a case wherein the Secretary of Labor brought an action to enjoin defendants from violating the provisions of the Fair Labor Standards Act of 1949 in paying employees wages at a rate less than the statutory minimum. Defendants filed an answer denying that they had violated the law, and filed interrogatories requesting that the Secretary inform defendants as to (1) the identity of persons from whom plaintiff had obtained any report, statement, memorandum or testimony concerning the alleged violations, (2) when, where and by whom each such report, statement, memorandum or testimony was obtained or made, 33 10 F.R.D. 468 (1950). 34 192 F. 2d 987 (1951) 35 See cases cited on the military secrets privilege: 345 U.S. 1, 7, n. 11 (1953). * U.S. v. Reynolds, supra note 32 at 9-10. 37 Not reported. See 35 Labor Cases ¶ 71, 713; 27 U.S. L. Week 2065. See also Mitchell v. Bass, 252 F. 2d 513 (8th Cir. 1958). 40377 0-59-pt. 1--9 and (3) the identity of persons whom the plaintiff knows or believes has any knowledge concerning the alleged violations. The Secretary responded to item 3 by giving a list of 85 employees and former employees of the defendants and elected not to respond to items 1 and 2. The Secretary's defense was that it was contrary to public policy to reveal the names of informants from whom information might have been obtained in the course of an investigation. The court limited the obligation of plaintiff with respect to item 1 only to require that defendants be informed as to the identity of the 85 employees and former employees who had furnished written statements to plaintiff. With respect to item 2, the court ordered that plaintiff should indicate which of the above mentioned written statements were taken by persons other than attorneys of record in the proceedings, since it had been intimated at the hearing that some of the statements might have been taken by attorneys of record.38 Plaintiff also filed a claim of privilege pursuant to REV. STAT. § 161 on the ground that the court's order would be prejudicial to the Government and to the public interest. Accompanying affidavits stated that 18 employees of the defendants had been interviewed and that on direct instructions from the Secretary of Labor each person interviewed had been assured that his identity and the fact that he had given information, as well as the information given, would be kept confidential and would not be revealed, except to authorized government agents. The plaintiff also argued that if disclosure were required it would make other employees of other business enterprises reluctant to disclose information to plaintiff's investigators concerning other violations of the Fair Labor Standards Act. Defendants countered with a motion to dismiss the action pursuant to Rule 37(b) (2) (iii) of the Federal Rules of Civil Procedure.39 After finding that the claim of privilege was not warranted the court entered an order of conditional dismissal, i.e., directed that defendants' motion would be denied should the plaintiff comply on or before August 25, 1958; otherwise the dismissal would take effect.40 In the opinion the court concluded that the ultimate determination as to whether the claim of privilege shall stand rests with the court, and found that the identity of persons who had given written statements would be necessary to the preparation of a defense. The court pointed out that the question of whether the defendants would be entitled to the statements was before it at this time. On the claim of privilege based on the promise of confidence the court said that: "Government investigators cannot, unless permitted by law, give blanket guarantees of nondisclosure to the people they interview." 41 Obviously this limitation in the court's order resulted from consideration of the "work product of the lawyer" doctrinė: Hickman v. Taylor, 329 U.S. 495 (1947). This argument was raised by the SEC in the Timbers case, supra note 17, but no mention of it was made by the Court of Appeals in its opinion. 39 The rule provides that if a party fails to produce documents requested pursuant to FED. R. CIV. P. 34, the court may dismiss the action, stay proceedings, strike pleadings or parts thereof, or render a default judgment against the disobedient party. 40 The author is informed that the Secretary of Labor elected not to furnish the information, and has filed an appeal. "The informer's privilege is defined in discussion in Rovario v. U.S., 353 U.S. 53, 59-61 (1957). The court said: "What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of The court was not impressed with the argument made by plaintiff that a requirement to disclose the names of informants will result in a large scale refusal by persons to give information concerning violations for fear of retaliation by employers.42 The use of the discovery rules by parties to actions brought by the Government, is apt to result in a considerable number of problems to the enforcement agencies. This will be especially true if a volume of cases develops in which a privilege is asserted and claimed. C. Criminal Cases In this field, as well as in the cases in the civil field where the Government is a party, the courts have been prone to permit entry into the government's files, despite a claim of privilege. However, the criminal field stands apart. There are considerations in this area which do not obtain in civil cases. An important opinion is United States v. Andolschek.48 In that case twentytwo employees of the Alcohol Tax Unit of the Treasury Department were indicted. Three of those found guilty had sought to obtain at the trial certain reports which they had filed following investigations they had made, hoping that the reports would support their contention that they were not guilty. The violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254; In re Quarles and Butler, 158 U.S. 532; Vogel v. Gruaz, 110 U.S. 311, 316. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. "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 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 privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action..." The court then summarized its statement by indicating the problem would have to be settled case by case (Id. at 62): "We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." "It seems to the writer somewhat naive, and certainly it closes the eyes to expectable human, emotional reactions, in effect to hold that an employer's possible retaliation for informing against him will not have an effect upon persons asked to give information. The thrust of this and like decisions has not yet filtered down to the mass of the people. It would seem that the argument to the contrary must rest upon the assumption that one does not have anything to fear from giving testimony about a person who is guilty of violating the law. However, this argument assumes what has to be proved. It does not always follow that the federal enforcement agency will prove its case, convict the wrongdoer and punish him. Doubtless in some cases, the civil remedy sought or the criminal conviction desired, will not be obtained. Then there is no wrongdoer; on the contrary the defendant is in the position to argue that he has been wrongfully and improperly charged. Woe to the employee who has participated in this so-called miscarriage of justice. It is not our purpose to become involved in an extended discussion of the merits of the Roma case, supra note 37. It is summarized in detail because it is an excellent example of the problems which may arise in enforcement litigation. 142 F.2d 503 (2d Cir. 1944). trial judge excluded the reports because he thought their disclosure was forbidden by Department regulations. On this point Judge Learned Hand said:44 "... While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully. . . . " The most recent cases which have affected the question of disclosure are Rovario v. United States 45 and Jencks v. United States.46 The Rovario case 47 was a prosecution for possessing and transporting narcotics. The defendant sought the name of a paid government informer prior to the trial and on several occasions during the trial. The Government refused to disclose the name so as not to prejudice other pending cases. In reversing the refusal of the trial judge to make this information available to the defendant the Supreme Court held that the defendant was entitled to the name of the informer. The court also indicated that defendant should have gotten the information prior to the trial.48 In explaining its holding the court mentioned, among other things, that the informer's possible testimony was “highly relevant”, that the informer was defendant's one material witness, and that there might have been an entrapment in this case.49 However, these contentions are criticized in a dissenting opinion by Mr. Justice Clark from which it would appear that defendant may have known the identity of the informer.50 A recent case which presents an interesting result in the light of the Rovario case is Amaya v. United States,51 wherein the defendants were prosecuted for forceably assaulting, resisting, opposing, impeding, intimidating and interfering with an immigration officer in the performance of his duties. The officer had received information that certain aliens who were in the United States illegally were in the habit of frequenting a certain bar near his home. On the evening in question the informer told the officer that one of the aliens was in the bar. The officer went to the bar and, after showing his credentials to per "The Government's case was proved by the testimony of a man who was secreted in the trunk of the car in which defendant and the informer were riding. And, also, by the testimony of another witness who followed in another car. One of the witnesses testified that when defendant was arrested and the informer was brought to the police headquarters the informer said he did not know the defendant. 50 There is an indication in the report that the informer had died: see dissenting opinion and comments therein: Id. at 66, et seq., and particularly at 69, 70. 51 247 F. 2d 947 (4th Cir. 1957) cert. denied, 355 U.S. 916 (1958). sons in the bar, proceeded to question them. Upon noticing that one person appeared to be making an exit, the officer stopped him to ask him questions. Immediately thereafter the officer was assaulted and beaten by the two defendants, one of whom filed this appeal. Rather than discussing privilege, the opinion discusses the basic problem from the point of view of whether or not it was prejudicial error for the trial court to preclude appellant's counsel from inquiring into the identity of the informer. After citing certain portions of the Rovario opinion the court stated:52 "In the instant case the immigration investigator had the right to enter a bar, which was open to the public, to interrogate 'any alien or person believed to be an alien as to his right to be or to remain in the United States.' The problem here 'is one that calls for' safeguarding 'the public interest in protecting the flow of information.' On the other hand, since the officer had the right to enter the saloon in the first place, knowledge of the identity of the informer would in no way have aided the appellant in exercising his 'right to prepare his defense.' It merely would have subjected the informant to the danger of a physical attack perhaps comparable in brutality to the one visited upon the immigration officer while in discharge of his duty." An extension of the Amaya case beyond its particular facts would go a long way towards restoring the informer's privilege. If the Amaya principle is applied generally so that, where a government agent obtains information in the performance of a statutory function, he need not disclose whether an informer gave him any leads with respect thereto, much ground would be retrieved. The Amaya case is not the only one in which a Court of Appeals has restricted the holding of the Rovario case.53 In the famous Jencks case 54 the Supreme Court held that where crucial testimony was given against the defendant by two paid undercover agents for the FBI, who stated on cross-examination that they had given regular oral and written reports to the FBI concerning matters to which they had testified, that the reports should be made available. Interestingly enough, the defendant asked that the reports be shown to the trial judge. However, the majority went beyond this point 55 and made the reports available to the defendant. The majority held that petitioner was not required to lay a preliminary foundation for his motion, showing inconsistency between the contents of the reports and the witnesses' testimony and that the petitioner was entitled to inspect the reports to decide whether or not to use them in his defense. 62 Id. at 952. 53 Following the Rovario case limitations have been placed upon its application: (1) the defendant must make demand for disclosure of the identity of a "special employee" of the Government and his failure to do so at or before the trial is a waiver of the right to the information: United States v. Colletti, 245 F. 2d 781 (2d Cir. 1957); United States v. Walker, 246 F. 2d 519 (7th Cir. 1957);, (2) where a federal agent is performing a function authorized by statute, here interrogation of persons in a public place, the fact that he may have received a tip to interrogate persons at that place, or even a particular person, does not require disclosure of the identity of the informant: Amaya v. United States, 247 F. 2d 947 (9th Cir. 1957); (3) where the identity of the so-called informer is known: United States v. Gernie, 252 F. 2d 664 (2d Cir. 1957) certiorari denied 78 S. Ct. 1006. 54 353 U.S. 657 (1957). 55 See concurring opinion by Mr. Justice Burton. Id. at 672, and particularly at 675 to 677. |