DECKER v. HARPER & ROW PUBLISHERS

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Argument of Lee A. Freeman, Jr.

Chief Justice Warren E. Burger: We'll hear argument in number 113, Decker against Harper and Row.

Mr. Lee A. Freeman, Jr.: Mr. Chief Justice, may it please the Court.

Chief Justice Warren E. Burger: Mr. Freeman, you may proceed.

Mr. Lee A. Freeman, Jr.: This case arises in the midst of several antitrust actions which have been brought on behalf of public schools and libraries and parochial schools seeking damages for an alleged price-fixing conspiracy among numerous publishers and jobbers in the sale of library editions of children's books to institutional schools and libraries.

This conspiracy is alleged to have lasted from 1959 to 1967 when the defendants entered into a consent decree with the federal government.

The treble damage proceedings on behalf of the schools and libraries have been pending for approximately three years.

They are consolidated before Judge Decker in the Northern District of Illinois under Section 1407.

Pursuant to order of court, the plaintiffs initiated extensive discovery efforts taking more than a hundred depositions of various personnel of the defendants.

These efforts to obtain the evidence and the facts were frustrated by the evasion recalcitrance and further occasion of the witnesses who the plaintiffs sought to depose.

As the District Court found, the witnesses were deliberately evasive, the witnesses exhibit a remarkable lack of memory concerning the critical advance alleged in the conspiracy.

There was a great discrepancy between the grand jury testimony of these witnesses and the testimony that they offered at deposition four years later.

There was also a fend ignorance by these witnesses concerning the incriminating correspondence they had either sent or received.

The laps of time between the conclusion of the federal government's proceedings, the grand jury investigation, and the depositions taken in these treble damage actions has obscured the recollection of these witnesses and has prevented in frustrated the plaintiffs from getting the facts.

Part of this delay has been attributable to the defendants since this is the second time that the defendants have sought to mandamus Judge Decker.

The first attempt was denied by the Court of Appeals and certiorari was denied by this Court.

Faced with this problem, the plaintiffs moved for the production of what has been labeled now debriefing statements which were taken from the grand jury witnesses by defense counsel.

It developed from the testimony of witnesses that the defense counsel had stood outside the door of the grand jury room while the Federal Government was conducting its grand jury investigation and as the witnesses left the grand jury room, defense counsel would take them somewhere else, sit down and either with a tape recorder or stenographer or with handwritten notes would asked the grand jury witnesses what questions have been asked by the grand jury, what answers they had given, what type of evidence they felt that grand jury already possess.

As the affidavits submitted by the defense counsel show -- this was an effort simply to reconstruct the testimony that had been given by the witnesses called before the grand jury in order to track the grand jury investigation and then advise the corporate client as to what had occurred before the grand jury and how best to meet the evidence that was being developed.

Inherently, this effort was not limited to corporate employees or to any other type of employees of a particular defendant.

This effort extended over all of the grand jury witnesses whatever grand jury witnesses would consent to sit down with counsel and tell him what had occurred before the grand jury.

Those statements would take in transcribe by the attorneys and use to advise their corporate clients.

Upon the motion, the District Court ordered that the defendants produce these debriefing statements and that if any defendant claim that such statements were privileged either under the attorney personal client privilege, attorney corporate client privilege or under the work product doctrine to set forth the precise circumstances and facts under which these debriefing statements were taken and the basis upon which the privilege was claimed.

The defendants did submit descriptions and affidavits concerning the nature of these debriefing statements, they appear on our appendix, and none of these affidavits was any claim made that the witness interviewed sought legal advice or that the attorneys rendered legal advice to the witnesses after they left the grand jury room.

There was no evidence from any of the affidavits filed by defense counsel of any confidential attorney-client relationship between the witnesses interviewed and the defense counsel who conducted the grand jury witness interviews.

It's conceded, I believe, on this record that these materials were collected in order to advice the corporate clients as to the matters that have occurred before the grand jury.

On this record, the District Court rejected the assertion that these debriefing statements were protected by the personal attorney-client privilege with one exception where the defense counsel's affidavit had made out a case for assertion of the personal attorney-client privilege, also rejected the assertion of attorney corporate client privilege.

Holding that this privilege only attached to communications made by corporate officials having the authority to seek legal advice and to act upon that advice on behalf for the corporation.

District judge further found good cause, substantial need for the production of these documents in overruling the claim or work product.

On a writ of mandamus, the Court of Appeals did not disturbed the findings of the District Court with the exceptions that the Court of Appeals held that the attorney corporate client privilege should extend to all debriefing statements taken from employees of whatever rank inside the corporation.

Our first point in this proceeding is that the use of writ of mandamus by the Court of Appeals was inappropriate.

In order and production of the grand jury's statements, the District Court did follow and apply substantial federal precedent already on the books and applied in either jurisdictions with Philadelphia v. Westinghouse, Garrison versus General Motors, Natta v. Hogan.

The proposed rules of evidence as the Court of Appeals recognized provided for a control group test precisely identical to that applied by Judge Decker not only that but the law of Illinois in which this Court sits has adopted the control group test.

Indeed, there was an indication in an opinion by another panel of the Seventh Circuit that this Seventh Circuit itself followed the control group test Rucker v. Wabash Railroad speaks in terms of the privilege not applying due to the fact that the employees were not a sufficient rank to qualify as spokesman for the corporation in that case.

The discovery are simply does not satisfy the pre-requisites for the use of mandamus.

There has been charge here that the District Court exceeded its jurisdiction or abused its judicial power.

The most that can be claimed is that the District Court aired in ruling on a significant legal issue within its jurisdiction and we do not believe that the writ of mandamus should not be used by the Court of Appeals to substitute its judgment on the disputed question of law regardless of the fact that it maybe significant.

Congress has provided specific circumstances for the review of interlocutory orders and a pretrial discovery ruling is not one of them.

The opinion as we cited in (Inaudible) expresses a strong legislative and judicial policy against piecemeal appeals.

There has been no showing on this record that there will be any irreparable harm or any error that cannot be corrected in a normal Courts of Appeal resulting from the production of these debriefings statement.

There is no claim that trial strategy has been revealed, there is no claim that the impressions or conclusions of counsel have been turned over.

Indeed, the District Judge was very careful in weighing the evidence as to each debriefing statement and return to the defendants the only debriefing statement for which it was claimed a work-product protection in terms of impressions of counsel -- conclusions of counsel only in the one instance where the document was substantially the impressions of counsel rather than simply a narration effects.

In that one instance, the district judge returned the document to counsel asserting the work product claim.

Indeed, this case illustrates the possibility of abuse that flows from piecemeal appeals of interlocutory order since this is the second interlocutory order which has been reviewed and a case has been pending for substantial time.

Plaintiffs have been delayed and imputed in the pursuit or discovery by these interruptions.

We contend that while mandamus was not appropriate for the Seventh Circuit to employ and we ask that this Court decide that mandamus was not appropriate as a matter of judicial decision supervision that this Court -- the Supreme Court should still undertake to review the substantive issue that is the attorney corporate client -- scope of the attorney corporate client privilege.

Chief Justice Warren E. Burger: Are we bound to?

Mr. Lee A. Freeman, Jr.: Well, the Seventh Circuit has created a conflict among the Circuits as a law before the Seventh Circuit ruled.

The precedent was all moving the same way and now there is confusion created by the Seventh Circuit's ruling.

I don't think that confusion could be raise by a decision of mandamus was inappropriate.

There will still be the pronouncement of accord in West Reporter that they take that view of the privilege.

Moreover, the proposed rules of evidence that are been now drafted considered this very point -- the scope of the attorney corporate client privilege and we believe it's more appropriate for that issue to be decided and litigated context rather than passed on -- in this Court's supervisory role when it reviews these rules and submits them to Congress for approval.

Of course we feel that we're supported by these rules and so proposed draft has come out in our favor and has adopted to control group test as applied by Judge Decker.

In short, we feel that this case in the Seventh Circuit in the context that it was presented to the Seventh Circuit did not present a sufficiently exceptional circumstance to warrant the use of the writ of the mandamus.

Unknown Speaker: Do you think Mr. Freeman this falls within the adjudication in the Will case?

Will versus --

Mr. Lee A. Freeman, Jr.: Oh, absolutely, I think that this is a much stronger case than Will to rule of that mandamus is inappropriate.

In Will, there was no opportunity for the Government to secure review of the ruling that they sought to review by the writ of the mandamus.

It's very similar --

Justice Byron R. White: That was a Bill of Particulars, wasn't it?

Mr. Lee A. Freeman, Jr.: If Judge Will ordered the Government to turn over a list of witnesses and the Government said that, it would prejudice their case and subject the witness the to possible retaliatory action if the list was turned over and perhaps result in a dismissal of the indictment.

The court assumed that there would be no review even from the dismissal of indictment still held mandamus to being appropriate.

Justice Potter Stewart: What is the -- is there a set of rule as to the scope of the attorney-client privilege with respect to agents of an individual person, i.e. assume a sole proprietorship and the proprietors has a lot of employees, one of them is a truck driver who is involved in an accident and the truck driver has a conference with the proprietor's lawyer.

And with respect to predicted litigation, now is that within the -- and then later this lawyer's records are subpoena, the records to that conference.

And obviously that truck driver is not in the control group because we're dealing with the sole proprietorship, is it settled as to what -- as to the scope of the attorney-client privilege in that case?

Mr. Lee A. Freeman, Jr.: Well, I think that's the issue here.

I don't think --

Justice Potter Stewart: No, I thought this was confined to corporation.

Mr. Lee A. Freeman, Jr.: No, but in this -- as you have stated and I do not believe the -- under the traditional terms of the privilege that the privilege would extend to that truck driver unless he were also a potential defendant unless he were consulting that attorney in a joint capacity, the truck driver being a potential defendant.

Well, --

Justice Potter Stewart: He might have his own lawyer but I'm talking about the privilege as between the sole proprietor and his lawyer as to?

Mr. Lee A. Freeman, Jr.: No, I think the rule would be exactly the same for him -- the partnership or a corporation depending upon the size of the organization and the relationship of that case is --

Justice Potter Stewart: In my case, the agent has no control or whatsoever as to the decisions to be made by the proprietor?

Mr. Lee A. Freeman, Jr.: I think the traditional rule is when you speak in judicial agency terms.

The agent has to be simply a transmitting agent or necessary to transmit the information to the attorney.

The truck driver who is talking to the lawyer on behalf of the owner of the truck is not seeking legal advice on behalf of that owner.

He is --

Justice Potter Stewart: He is reporting to the proprietor -- the truck owner's lawyer who is in respect to predictable litigation involving the owner and the employer.

And so we're dealing with the privilege if any as between the owner employer sole proprietor and his lawyer.

Mr. Lee A. Freeman, Jr.: And the fact that this truck driver is an employee of the sole proprietor, in our view makes him no different than any other witness to the extent --

Justice Potter Stewart: I didn't really ask your view so much as does to.

My question was, is the law settled in that area?

Mr. Lee A. Freeman, Jr.: No, I don't believe the law settled in that area.

I believe that this decision would have an effect on the law in that area as well.

Justice Potter Stewart: You do.

You don't see any distinction, really?

Mr. Lee A. Freeman, Jr.: No.

None in --

Justice Potter Stewart: Between whether or not the employer is a corporation or partnership or sole proprietorship, do you?

Mr. Lee A. Freeman, Jr.: No, I don't think that there is a distinction in terms of the application of privileges as there was no distinction in U.S. v. White with respect to the coverage or the privilege against self-incrimination.

I believe as Justice Murphy held, you have to look at the purpose of the organization and whether it be a labor union or trade association or a partnership if that purpose is so associate with an individual's purpose, then it would be protected, whereas if it is a collective purpose or a business purpose, it would not be protected.

We feel that the control group test as applied by the District Court strikes an appropriate balance for the need for discovery by litigants and the rational for the attorney-client privilege of rational agenda lays a traditional attorney-client privilege.

I believe all commentators recognized that the privilege results in a suppression of information and needs to be confine within the narrowest possible limits consistently its purpose.

A consistence with its purpose, the control group test recognizes the privilege with respect to communications to counsel for the purpose of securing legal advice by those corporate officials having the authority to direct the corporate action taken on that advice.

The function of the privilege is to protect counsel -- to permit counsel to give advice to the client and for the client to act upon that advice and we believe that logically that provision only extend to corporate officials who respond to the attorney's function as an attorney, the person who acts on the advice is therefore protected in his communication.

The control group people -- those people who can act on the attorney's advice are really the only people who occupy a confidential relationship with the counsel.

They are the people who seek the advice.

They are the people who implement the advice.

The respondents have argued that it is very important for the counsel to give adequate legal advice to secure all of the facts and I believe this relates to your question Mr. Justice Stewart.

But we do not believe that the need to secure the facts constitute a rational to apply the privilege.

In this instance, it may be far more important for counsel for Harper and Row to secure the facts from the witnesses who have testified from wholesalers as to the enforcement and maintenance of this price conspiracy than to interview their own employees.

There may be far more damaging that evidence developed before the grand jury from other witnesses than from the corporate employees.

We would distinguish sharply then the distinction -- the fact-gathering function of an attorney from the function of giving legal advice and we believe that it is only that function of giving legal advice which authorizes the privilege to apply that communication.

Chief Justice Warren E. Burger: Very well.

[Recess]

Mr. Freeman, you may continue.

Mr. Lee A. Freeman, Jr.: Mr. Chief Justice, in this case, we are talking about materials which have been assembled by corporate counsel.

These materials reflect factual information which should otherwise be available by the ordinary processes of discovery that is from corporate records or from the testimony of the witnesses themselves unlike an individual that corporation has no privilege against self-incrimination and accordingly, the plaintiff should be able to go forward and accumulate this evidence from the oral depositions of the witnesses and from review of the documents that exist in a corporate files.

Justice Byron R. White: Mr. Freeman, I thought perhaps all you want to find out was what these witnesses testified to before the grand jury?

Mr. Lee A. Freeman, Jr.: No, it's much more than that Mr. Justice White because as the debriefing memos or statements which we received show, many of the witnesses did not tell the full story before the grand jury.

Many of the -- the grand jury did not explore many of the areas which are significant to our case.

These are rather subtle matters and when --

Justice Byron R. White: Your purpose is just isn't to pick up conflicts between what the witnesses said to the grand jury and what they told to counsel?

Mr. Lee A. Freeman, Jr.: Oh no!

Well, that's one of the purposes conflicts between what they told to the grand --

Justice Byron R. White: Is that enough?

Mr. Lee A. Freeman, Jr.: What they told to counsel, but they also told counsel more --

Justice Byron R. White: Would that be enough reason?

Mr. Lee A. Freeman, Jr.: Oh yes!

I bet it goes to the good cause of discovery.

I think that would be enough of a reason, but we have much more in this case.

We have for instance there are meetings which occur every month among the publishers, the publisher's sales managers meeting.

In the depositions the witnesses say, they don't attend the meetings before the grand jury.

They go and say that they attended the meetings but discussed baseball.

To their counsel they go and say we all agree to cut this jobber off because it cut prices.

There's a great difference in degree between the versions of the story which appear in depositions in the grand jury and in relating up to counsel.

As well as the fact that there's been a great laps of time between the grand jury investigation and the depositions we are taking in this case have been for --

Chief Justice Warren E. Burger: I think about one thing to you responded to Justice White, that one of these at least in part to find out whether there was any conflict between their testimony before the grand jury and some that might be given at another time. Can't you get that if you're entitled to which by giving the grand jury minutes?

Mr. Lee A. Freeman, Jr.: That would be the distinction -- the discrepancies between the grand jury testimony and the deposition testimony.

We do have that.

We have the grand jury minutes.

Chief Justice Warren E. Burger: Well, then why do you need to find out what they testified to before the grand jury?

I thought that's what you were narrowing on in responding to Justice White?

Mr. Lee A. Freeman, Jr.: Well, there's two points that we need to explore.

We need to find out first whether the witnesses told the truth before the grand jury, whether they fully elucidated the facts before the grand jury.

Second, we need to know what areas of grand jury missed.

Indeed, the debriefing statements which we called quote in our brief illustrate that the witnesses came out of the grand jury and said, “the examiner was right to the point of asking the crucial question” but he didn't ask that question if he had asked that question whether I refuse to supply a discount in jobber.

I would have had to answer yes.

Well, from that -- from those kinds of statements in the debriefing statements.

We can then proceed and we depose the witnesses and either impeach them or refresh their recollection with that information.

It's quite significant to us in the context of this case where decisions turn on very -- in a price fixing case where decisions turned very subtle factors and the information as to what occurred behind closed doors in a darkened room among conspirators, what phrases were used by these conspirators is very significant.

And that's why we need the debriefing statements.

Chief Justice Warren E. Burger: Still ask me if you got the grand jury minutes – isn't that the better evidence of what they said in the grand jury?

Mr. Lee A. Freeman, Jr.: No and I think no.

It is the best evidence of what they said in the grand jury.

It is not -- the debriefing memos however are the best evidence of what they withheld or concealed from the grand jury and what they would have said in front of the grand jury, had they've been asked certain question and this occurred five years ago.

This occurred in 1965, 1966, this occurred when their memories were fresh.

This occurred when they were in less adverse circumstances and that these debriefing statements do record facts which are not otherwise accessible to the plaintiffs.

Justice William J. Brennan: What you really want do is to match up their grand jury testimony of what they told their lawyers in these so-called debriefing statements?

Mr. Lee A. Freeman, Jr.: Yes, that's one of the main.

Yes, that's the main purpose beyond that, they're also useful as discovery tools to discover what in fact the witness knew beyond the questions asked in the grand jury.

I believe the debriefing statement submitted to this Court that runs 24, 25 type pages tape recorder and it does contain numerous incidents testified too by the witness which were not explored before the grand jury.

And these are things which in many instance the witness can honestly fail the recall and many instances, the witness simply will not undertake to recall these factors in depositions.

Justice William J. Brennan: What would you say as to first who had not testified before the grand jury and who you with good reason would suspect that the lawyers or the defendants who want interview, do you think you can get his statement?

Mr. Lee A. Freeman, Jr.: Oh!

It depends upon the showing and I think that goes to a good cause.

Any discovery of course is predicated upon a showing of good cause.

In this case, Judge Decker found substantial need if during depositions, the witnesses exhibit the evasiveness recalcitrance and the complete disavowal of their prior written communications.

Then, yes indeed, I believe we would be entitled to see that this information which was collected by counsel be in factual information collected by counsel at the time when the witness was much more -- much closer to the events and had a much broader recollection of the events.

Justice William J. Brennan: Well, supposing the witness gets to understand as the first analogy you have that he is going to be a witness against you and he testifies and then you say, “Did you testify for the grand jury?”

He said “No.”

Do you make a statement to your lawyer?

Yes.

Could you get that statement?”

Mr. Lee A. Freeman, Jr.: Again, I believe it would depend upon the attitude of the witness and the need which the plaintiffs show for that information.

It would also depend upon whether that information was available from other sources, from other witnesses from documentary evidence.

I think it's a balancing test and it's something that the District Court would have to administer and rule upon.

I don't think that point goes to the privilege, I think that point goes to whether or not the plaintiffs would be entitled to secure that information whether or not they had made a substantial showing.

Justice William J. Brennan: Well, I should've added one in my -- one thing in my hypothetical that the witness was an employee of the corporation.

Mr. Lee A. Freeman, Jr.: Oh!

I don't think that would make any difference if he were outside the control group as the control group has been defined by the lower courts.

Justice Potter Stewart: Did I understand you say Mr. Freeman that this question is covered by the proposed rules of evidence for the United States District Courts and Magistrates?

Mr. Lee A. Freeman, Jr.: By preliminary draft to that proposal was Rule 5-03 (a).

Justice Potter Stewart: Which does more or less adopt the control group test?

Mr. Lee A. Freeman, Jr.: Which defines the client as a person who can speak on behalf of the corporation -- take action on behalf of the corporation?

Justice Potter Stewart: And that's the preliminary draft.

Does that suggest at least the possibility that the issues and questions in this case might better be dealt with by through canvassing by that Committee and later adoption or none adoption by this Court and by the Congress rather than any particular litigated case and that maybe we made a mistake to grant certiorari in this case?

Mr. Lee A. Freeman, Jr.: No, in both instance I believe the canvassing has occurred.

I believe the standing Committee solicits comments from members of the bar and from practicing lawyers and makes its recommendation to this Court on the basis of the material it's collected.

In this case, we have had extensive participation by amicus curiae and I believe that in this instance, it would be perfectly appropriate and perhaps even better for the Court to decide this issue in a litigated context rather than simply the rule has take effect by the inaction of Congress.

Justice Potter Stewart: But then well, of course first of all by approval by this Court, would they?

Mr. Lee A. Freeman, Jr.: Yes, there would be by approval of that.

Justice Potter Stewart: And if that work is going on simultaneously under the rule making power of the Court acting it present to its Committee and isn't that the place for it to be?

Mr. Lee A. Freeman, Jr.: I'm not certain I can satisfactorily respond to that question.

I believe that it's appropriate to decide it here.

I believe in Hickman v. Taylor, the issue was decided here and in Hickman v. Taylor of course showed the way for later revision of the federal rules indeed Rule 20 -- the newly adopted Federal Rule 26 embodies the Hickman v. Taylor ruling on work product.

I think -- in fact, I think that there would be litigation surrounding the meaning of the rules where the rules to be promulgated and that controversy that litigation could be settled here without a necessity of later judicial controversy.

Justice Potter Stewart: And what happens to all the work that the Committee has done in this area?

Mr. Lee A. Freeman, Jr.: Well, I think the Court could adopt the rules submitted by the same (Voice Overlap).

Justice Potter Stewart: If you prevail and the Court will decide in your favor here and adopt the proposed rule?

Mr. Lee A. Freeman, Jr.: Yes, since they both go the same way.

Chief Justice Warren E. Burger: I take it you like all the rules then not just this one.

Mr. Lee A. Freeman, Jr.: Excuse me.

Chief Justice Warren E. Burger: I take it you like all these rules of the Committee on those rules?

Mr. Lee A. Freeman, Jr.: I think the Committee has made the proper choice with respect to its proposal, perhaps at least in so far as I --

Chief Justice Warren E. Burger: So far it's concentrated on this one now?

Mr. Lee A. Freeman, Jr.: Yes.

I'd like to save the remaining time for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Brown, you may proceed.

Argument of H. Templeton Brown

Mr. H. Templeton Brown: Mr. Chief Justice, may it please the Court.

I'm afraid that I agree with counsel for petitioners on only two points.

I do agree that this issue should be decided by this Court in the context of litigated matter rather than by a Committee.

I further agree that the application of the attorney-client privilege applies with equal force to an agent whether it be the agent of a sole proprietor, partnership, an association, or a corporation.

At the outset, I should state that many of the statements, if not most of the factual statements made by Mr. Freeman have been made out of context and have no relevance to the issue that is presented to this Court.

The ruling made by Judge Decker was made purely on the basis of a ruling of law.

None of the facts that are involved in the controversy had anything to do with his ruling.

He also ruled in other areas such as whether or not there was good cause to grant the production of grand jury minutes.

And whether or not the attorney -- whether or not the work product rule applied, and whether or not there was personal attorney-client privilege.

None of those were germane to the question that is presented here.

Justice Byron R. White: Isn't it true that he did permit the production of some of the debriefing statements?

Mr. H. Templeton Brown: I think there may have been -- well, there may have been a limited number to which an objection was raised.

Justice Byron R. White: Yes and those are in the record now?

Mr. H. Templeton Brown: Both would be.

Justice Byron R. White: Those were submitted sealed to the judge, he made his ruling but the ones that were ordered produced are now available?

Mr. H. Templeton Brown: There was no objection to those.

Justice Byron R. White: And they're now available?

Mr. H. Templeton Brown: That's correct and the other --

Justice Byron R. White: Would you suggest that the contents of those debriefing statements in terms of what they cover and what they don't cover are irrelevant to decision of this case?

Mr. H. Templeton Brown: Oh!

Yes, I would.

Justice Byron R. White: Why?

Mr. H. Templeton Brown: Well, in the first place it seems to me that an attorney-client privilege has to be determined at the time that a communication takes place.

There is no such question despite that argument by Mr. Freeman.

Justice Byron R. White: Well, I know, but what goes in the deciding whether the privilege would?

Mr. H. Templeton Brown: Well, I would like come to that in the course of my argument that the question is what the -- what is the nature of the communication under what circumstances as the communication had?

What is the purpose of the privilege?

Does the attachment of the privilege protect the interest of the public?

These matters are not matters.

This is not the work product doctrine.

This isn't the question of changing of an after the fact decision based from the question of whether or not there is a good cause.

This is a completely different animal.

And as I say the decision of Judge Decker that is the decision that is brought before here for consideration by you is purely a question of law and what happened in that court is not in any sense germane remain to his decision or to importance of the decision here.

Now, I suppose every case has its extreme importance to the attorneys were involved in my owner remarks will have to be view accordingly.

The widespread concern of the bar however, over the outcome of this proceeding as evidenced by the amicus briefs filed by the American Bar Association and other prominent bar associations.

I think it gives compelling evidence that the decision of this Court will have a very significant effect from the manner in which corporate legal representation or hereafter be conducted in this country.

Justice Potter Stewart: Were the representatives of the bar associations, were their voices heard before the Committee and trusted with developing the new federal rules of evidence?

Mr. H. Templeton Brown: Well, let me advert to that Mr. Justice White.

The draft that you heard was a preliminary draft of a proposed rule.

Now, I do not know what comments have been received by the Committee since that time, but the preliminary draft of proposed rule is a far cry from the drafting of a rule.

And I am certain that the Committee has had -- has been flooded with comments and since that date, nothing further has come out.

However, the view of the bar which appears to be a unanimous view as indicated by the Association of the Bar of New York, the American Bar Association, the Illinois Bar Association, the Commonwealth of Virginia and others would indicate that as far as the Bar is concerned, a completely different and contrary review was held.

Of course I --

Justice Byron R. White: You don't know then whether the Bar Association says -- the association's (Inaudible)?

Mr. H. Templeton Brown: Well, I think that they have but I -- it would be really a hearsay as far as I'm concerned as to what they've done.

I have not participated myself in any action taken by the Bar Association in connection with the Committee.

I understand the positions have been taken and that they are rather drastically opposed to the preliminary draft to the proposed rule.

Of course personally, I tend to approach this in the standpoint of a practicing attorney who for about 45 years has been rendering legal advice to clients and protecting them in their interest in court and before administrative agencies, and I look at it from a practical rather than from a theoretical viewpoint.

I think that they put the question in proper context namely, what is the application of this privilege to a corporation?

I have to devote a few moment to a discussion of what the origin and nature of the privilege is.

Of course, the attorney-client privilege is not a rigid and flexible rule of evidence or of law.

It's a rule founded upon justice and reason which has accommodated itself and must continue to accommodate itself to changing conditions.

When it was first to enunciated, so about 300 years ago, it was a privilege available only to the attorney.

As early as 1801 however, it was stated by Lord Eldon to be the privilege of the client and the public and so it's been come to be regarded ever since a privilege protecting not only the interest of the client but the interest of the public as well.

Originally, it was a privilege limited to pending litigation then to contemplated litigation then to other litigation and as it accommodated itself to expanding conditions it finally became a protection to legal advice without limitation.

Now, originally, it was directed toward communications between an attorney and an individual client and the reason is obvious.

In the 16th and 17th centuries, there was very little but individual clients.

Again, it has accommodated itself in this respect to a changing world and it has become increasingly directed toward the protection of confidential information between an attorney and a corporate client.

I think the reason for this recent direction becomes clear when consideration is given to the question of just what the purpose of the privilege is and just how that purpose can be best accomplished.

The purpose I would judge is undisputed.

It is universally accepted not only in this country but in all other countries of the civilized world of whose judicial systems I have any knowledge that it is in the interest of the public, that every person whether an individual, an association, or a corporation should be encouraged to seek professional advice in the guidance of its affairs.

That with a benefit of such advice, he will be more up to conform his conduct whether a personal or corporate to the standards imposed by society.

I think it's further generally accepted that in order to accomplish this subjective communications between a attorney and client, whether verbal or in writing, must be free and uninhibited for human nature being what it is, what it has always has been and what I suppose it always will be depending the coming of the millennium.

The ordinary individual seeking legal advice or providing information upon which legal advice will be predicated either for him or for his or for a corporate employer.

He will be more willing to speak freely knowing that the attorney cannot be required to become an informer against him.

If he knows that he is protected by the attorney-client privilege and the communication must be held in confidence.

Today, as everyone knows the corporations are exhuming and ever expanding role in our society.

Today, a corporation is supposed to do more than provide a good product and profits for its stockholders.

It's supposed to have an interest in the protection of the environment and the protection of civil rights and in other matters that are important to common welfare.

It certainly, is no less important that a corporation been formed its actions which have greater rate today than the actions of individuals to the laws of the land and then the best interest of society then that the individual do so.

Now, this general acceptance of this proposition is well established.

To the best of my knowledge, Mr. Freeman, Sr. is the only person who has ever sought to contest the propriety of the application of the attorney-client privilege to a corporation.

He did that in 1962 and we happen to be on opposite sides of the table of that time as well.

His effort however met short shrift at that the hands of the Seventh Circuit Court of Appeals and the case American Gas -- Radiant Burners versus American Gas Association certiorari denied by this Court in 1963.

Today, counsel concedes though, I think it is with obvious reluctance, that there has to be an attorney or at least not has to be, I overstate, that there is an attorney-client privilege of some sort.

But they would render it wholly important with the restriction which has suggested namely that an attorney be permitted to communicate in confidence with only a miniscule number of persons in any corporation forming what is described as the control group.

Counsel argues that to go further would constitute an extension of the privilege.

He relies basically on the decision of Judge Kirkpatrick and the case of City of Philadelphia versus Westinghouse.

However, nothing could be further from the fact.

The control group test when enunciated by Judge Kirkpatrick in 1963, sprung full-blown from his own draft.

Prior to that date, it was known to neither man nor court.

On the contrary, the rule as advocated by the respondents here, have been consistently applied prior thereto.

I think it is important that neither Judge Kirkpatrick nor any of the limited number of courts which have followed him nor counsel here have given any rationalization of the application of the control group test.

I think you will find that every argument that has been made to date is an argument against the propriety of the attorney-client privilege itself rather than a limitation of its application.

In none of the cases cited by petitioners was any analysis made of the results which could be expected to flow from the adoption of those test.

The question is to whether or not it would affect the giving of professional advice and the interest of the public in making sure that that advice was given.

Furthermore, none of the cases following the Kirkpatrick decision was the validity of the control group test even a contested issue with the possible exception of a day case in Illinois where the court opinion doesn't make the position of the parties entirely clear.

The question and each of these cases was merely whether assuming the validity of the control group test, it could properly be applied to the communications which were there under consideration.

It would appear to me that Judge Kirkpatrick's opinion appears to have resulted from the giving of an undue emphasis to the giving of advice as oppose or rather than the obtaining of information and the feeling that advice need be given only to the limited group dictating policy.

The likelihood that a limited group of people may dictate over all policy in a corporation is -- I can see to be of no significance as far as the interest of the public in having every employee through whom a corporation acts and with full knowledge of the law and the consequences of its own action.

Now, the control group test would make it impossible not only to receive information from the employee, but to give advice to the employee.

This is directly contrary to the law as it has been known and I think perhaps at this juncture I might answer the question of Mr. Justice White asked.

This is what Dean Wigmore has to say with respect to the availability of the privilege to an agent.

He says, “This of course includes communications through an interpreter and also communications through a messenger or any other agent of transmission as well as communications originating with the client, agents it made to the attorney.”

As far as I know, no one has here before ever taken the position that there was any distinction between the agent of a sole proprietor or a partnership and the agent of a corporation.

The -- it is inconceivable to me that in the interest of the public, there could be any distinction.

If it is in the interest of the public that every person in a -- that every person act with full knowledge of the consequences of its action, then why should the protection of the privilege be limited only to a very small number.

Why should it be denied to the person who made the most in need of the advice?

Now, you may say that, maybe you argued that if you give the advice to a president, it ultimately filters down through challenge of communication and ultimately gets in some form to the person not on the firing line who needs the -- really needs the information to conform his action and the actions of persons whose action he is directing.

But if the advice is to -- if the privileges of value and the advices of value, then the advice should be available in the form in which it is most effective.

And I do not see how anyone could argue that advice given to the president of a company has more to do with the action taken by sales manager who was in charge of a sales group than the advice given directly to the sales manager where he can ask questions or he can an get interpretation where he really knows what the significance of the advice is.

If the attorney-client privilege has any value, it has value on an ever expanding and broader scale and not on an ever limiting and small scale.

If the information given to an attorney is obtained by an employee in the course of and as a result of his employment, I can see no legal, logical or practical reason why the position occupied by the employee or the extent of his ability to dictate the use to be made of a resulting opinion should be a matter of any importance or should be a matter of significance as far as the public interest is concerned.

If it is well informed the advice that a person should have then that advice should be obtained from the source where it is best and most accurately available.

I think it's apparent that the president of a large company very rarely knows the details of the day-to-day operations of the company.

This is information that you ordinarily would have to collect from my number of broadly based sources.

The salesman or the sales manager may best know whether or not there are pricing practices which may be suspect under the Robinson-Patman Act whether those prices may be justified on the basis of meeting of competition or something else.

Justice Byron R. White: Mr. Brown, an employee of a corporation or the employee of an individual certainly anticipates that he might be called as a witness and is sued against his employer and his employer knows that too, I suppose.

And if he has some relevant information, he knows that he is going to have to testify (Voice Overlap) and will have to tell and will have to swear to tell the truth and is suppose to tell the truth.

And if he knows that he's going to tell on the stand the true story, obviously, it's going to be same story he's going to tell his lawyer.

Now, what's the big problem?

Mr. H. Templeton Brown: Well, I would say Mr. Justice White that if the matter is a simple as the one that you stated that you might just as well discard the attorney-client privilege.

Justice Byron R. White: Well, I still ask you (Voice Overlap) what's the significance of the privilege?

Mr. H. Templeton Brown: Alright.

The significance, it seems to me is this.

I'll speak from the basis of the experience, if I'm trying to study the pricing practices of a company in order to determine whether or not there may be some implications under let's say reciprocal trade relation problems.

Formerly considered to present no problem not considered to present a problem that is yet unresolved or if I'm looking at a Robinson-Patman Act question, I don't just ask the employee a simple question recount to me what you did or that.

You act more as much as an inquisitor as you do as subscribe, this is a very large part --

Justice Byron R. White: That all may be true but the problems only going to come up isn't it when there might be a variation between what the employee would tell counsel and what he would he say on the stand, is that what worries people or?

Mr. H. Templeton Brown: Well, let me -- I think that the best thing I can do Your Honor is to refer to authority that I have always considered to be very persuasive to me.

In U.S. versus Louisville and Nashville Railroad Company, this Court said, “The desirability of protecting confidential communications between attorney and client as a matter of public policy is too well-known and has been too often recognized by textbooks and courts to need extended comment now.”

If such a communications were required to be made the subject of examination and publication such enactment would be a practical prohibition upon professional advice and assistance.

And that's --

Justice Byron R. White: Well, I understand that and I have read that before, but what -- again, just tell me what deterrent effect is there going to be on an employee in communicating with counsel which seems to be the main point here?

What does guaranteed practice are going to be if he anticipates that he's going to be a witness, he's going to have to tell the truth on the stand?

Mr. H. Templeton Brown: I don't -- I think as I said before that this gets back the way question of human nature as much as anything else and regardless of how human should act.

I am quite certain from my own experience that they do not talk as freely and as candidly if they feel that the communication is not privileged as they would otherwise do.

Justice Byron R. White: This is really in some way as you think a handmaid and other the privilege against self-incrimination maybe?

Mr. H. Templeton Brown: No, I do not.

I think that the privilege against -- well, let me say that they have been discussed together but as far as I'm concern they're entirely separate things -- entirely separate.

Justice Byron R. White: And none of the values, none of the same values underlie the attorney-client privilege you have?

Mr. H. Templeton Brown: Well, some of the same values underlie it.

Yes, but as far as the privilege against self-incrimination is concerned it obviously doesn't apply to a corporation.

Justice Byron R. White: Yes.

Mr. H. Templeton Brown: If you say that the privilege against the self -- if you take the argument it seems to me or the question, I beg your pardon, that's been propounded to me and carried what's logical extreme then what's the value, why should you have the privilege against self-incrimination if the employee is going to have to except in the criminal case (Voice Overlap) why --

Justice Byron R. White: Well, that's the reason.

The reasons are the values that underlie the privilege.

Mr. H. Templeton Brown: Well, and that's precisely what I think is true here and this is --

Justice Byron R. White: Well, what are those values that underlie the attorney-client privilege that you're talking about that indicate that although he is going to have to say the same thing on the stand nevertheless the lawyer shouldn't have to say what he told him?

Mr. H. Templeton Brown: Well, I'll be perfectly frank.

If I felt that every time that I spoke to an employee or to a client that I recognize that at some future date, I could be place on the stand that my deposition be taken and I ask Mr. Brown, “What did you say?

What was said to you?”

It may cover a platter of subjects because in the course of a deposition you are not strictly limited as to questions of relevance say this is a search for information.

If I felt that that were -- the way that I were going to have to practice, I would find that very difficult.

Justice Byron R. White: So, it's a -- it's really as much of this argument goes to the impact on counsel as on the client?

Mr. H. Templeton Brown: I did not intend to mean that -- intend to mean it as such because I think that if I do not feel free.

I mean I hope that I am of some benefit to my clients that it isn't just a question of protection after the fact after something has been done.

I think that any good attorney hopes that his advice acts a prophylactic as well as a defense.

And I do not think that I would be on an equal position to accomplish that without the protection of attorney-client privilege.

I just -- to me it's inconceivable that a person should be required to supply his adversary with the paid investigator.

That's what it amounts to because you are proving not only the information that he receives, you're proving the advice that he gets.

Chief Justice Warren E. Burger: Are you really saying that anything that undermines full candid disclosure by client to a lawyer is to that degree inhibits the whole process?

Mr. H. Templeton Brown: I am saying that and I have thought that this was generally recognized.

I have thought that the value of the privilege was no longer open to question and that the only question to was -- I beg your pardon, sir?

Justice Byron R. White: If the values are there, I would think it would be help to restate them which you're now doing?

Mr. H. Templeton Brown: Yes, well.

Justice Byron R. White: I welcome those that and your point and when your point is that you don't think you want to be a built-in an impeachment mechanism for the opposition?

Mr. H. Templeton Brown: I certainly do not.

I would find that very distasteful.

Maybe I don't have too long to practice so it won't bother as much as some of my younger friends.

Furthermore, of course this would leave a corporation in the anomalous position of being responsible for the actions of its employees, having their information imputative and yet not being able to get in confidence.

The information of that would enable the corporation to control its activities.

I can see that my time is becoming somewhat limited so I'll leap to as much as I can of what remains.

Counsel has both on brief and here suggested problems that he feels would be created by an extension on the privilege.

Now, bear in mind actually I thought what we were arguing here was the question of extension of the privilege.

It is quite apparent that we really are getting back to the genesis of it and the basis of it.

But these are largely, I would say, completely without substance and the figments largely of counsel's imagination.

The argument has made that this would somehow suppress evidence.

It doesn't suppress anything, every scrap of information that an employee has before the communication remains available thereafter.

If --

Justice Byron R. White: Are you really suggesting that this is in respect to privilege?

You really are talking about a contraction of an action?

Mr. H. Templeton Brown: I am talking about, that's correct.

I misspoke myself.

I thank you very much, Your Honor.

What I was trying to say was that obviously the privilege itself suppresses no information that every scrap of information that a person has before remains available.

Every document that he has that the corporation has that he has any knowledge of is -- remains available.

Every avenue of discovery that existed prior to the time of the communication remains open.

I'll skip over a part of what I have in mind.

I think I've already adverted to the opinion of the Court.

Counsel makes the point that in his opinion that the restriction of the privilege which he seeks would not place any impediment on the way of securing legal advice and it won't discourage its use.

All I can say is that I agree 100% with the former opinion of the Supreme Court.

I think that it would -- that it would absolute, they will have a very great impediment.

Justice Byron R. White: May I ask you?

Mr. H. Templeton Brown: Certainly.

Justice Byron R. White: If the corporate president interviewed the sales manager and makes a memorandum of it, is that something of discovery?

Mr. H. Templeton Brown: Certainly.

Certainly.

It's only the communication that might never have taken place but for the existence of the privilege.

Justice Byron R. White: And if the lawyer does the interviewing and writes a memorandum, he gives to the president that's not so self-discriminating?

Mr. H. Templeton Brown: That is not.

Unless, that oh there are qualifications obviously.

If it's waived or if it's on a factual matter rather than a legal matter, there are these various exceptions but basically that's entirely true.

Justice Byron R. White: Not necessarily.

Mr. H. Templeton Brown: Not at all, sir.

I think that there are some suggestions or inferences which the counsel has made which get into the factual area that under the antitrust laws there should be some exception to the general rule.

Now, neither this nor any of the other factual statements had anything to do with the opinion below.

As I have indicated, the factual statements that were made by Judge Decker related to his ruling on the release of grand jury minutes of the -- his finding on the work product doctrine and his finding on a personal attorney-client privilege.

Justice John M. Harlan: What do you think about the jurisdiction or mandamus point?

Mr. H. Templeton Brown: Well, I have to touch it very briefly obviously and I have to rely for a more detail discussion on the brief.

Justice John M. Harlan: In your brief?

Mr. H. Templeton Brown: I will state about five things.

I think that the importance of the question is made clear as indicated by the interests of the attorneys throughout the country in the various bar associations.

There was no other effective remedy that was available in this instance.

The court below not only refuse to certify but refuse to return the impounded documents so that had respondents chose him to, they could've refuse to produce them and gone up under contempt.

Obviously, a -- that is obviously a ruling after the documents were released would not be an adequate remedy the information is gone.

If even more importance to me, failure to review the order of the trial court would have left unresolved in the event of a verdict for the defendants or a settlement an issue which was stated by the Court of Appeals to have substantial importance to the administration of justice.

I think also particularly compelling as the fact that the Court of Appeals in Radiant Burners in 1963 cited with approval the decisions of Judges Leahy and Wyzanski and the Zenith Radio and United Shoe Machinery cases stating that in those cases, the problem posed “where a corporation must act through its officers and employees was competently met.”

In both of those decisions, the privilege was held to protect communications between an attorney and employees of a corporation who were not claimed to be.

And in fact, obviously were not members of a control group.

An appellate court generally has it within its power to grant mandamus and exceptional situations and I would say that assuredly that power exist for its exercise for the purpose of compelling a lower court to adhere the principles which the appellate court has enunciated.

I see the warning sign and in closing, may I say that I consider this to be as an important argument.

It has ever been my privilege to make and I only trust -- I have adequately presented the position of the many attorneys who through their bar associations and have shown their concern and the resolution of an issue which in their opinion will have a very serious barring upon their ability to serve the best interests of their clients and of society.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Brown.

Mr. Freeman, you have a two minutes left.

Rebuttal of Lee A. Freeman, Jr.

Mr. Lee A. Freeman, Jr.: To touch briefly on a few points, we submit that it is not possible as defendants wish to mechanically apply the individual attorney privilege to the corporate context.

This Court has already drawn a distinction between individuals and corporations for purposes of their privilege against self-incrimination and to decide the scope of the attorney corporate-client privilege.

We must look at the purpose of the privilege and if the purpose of the privilege is to encourage frank discloser to the attorneys that purpose is not fulfilled by applying the privilege to subsidiary or lower issue line employees.

The privilege is not necessary to secure reports from these employees.

In this situation, the attorney stands in no different posture than any ordinary corporate executive.

If the employee is asked to submit a report, he will submit a report.

The fear that corporations will stop employing attorneys or the attorneys will not properly prepare their cases for corporate client is also a relatively remote.

This rule has been in effect to control group rule in the Eastern District of Pennsylvania for eight years.

It has been applied throughout the electrical conspiracy cases by Judge Kirkpatrick, Judge Ryan, and Judge Christiansen.

It was applied by Judge Fullam in the Philadelphia Electric versus Anaconda Brass case.

In that case, Judge Fullam held there was no privilege but refused to disclose the debriefing statements because he found there was no good cause for their discovery.

Indeed, all of the arguments which have been raised by the defendants in support of the privilege are really arguments which go to good cause and they were arguments which were answered by Hickman v. Taylor.

The idea that an attorney will be a witness against his client, the idea that an attorney will be a source of information for his adversary, the idea that discovery of work product will reward the slothful attorney and penalizing industrious attorney.

It hasn't happened.

It hasn't occurred.

Courts require quite a substantial showing of need before they open opposing counsel's files to their adversaries.

And I think that is sufficient protection to all of the fears which the defendants imagine.

It really boils down to a balancing of interests.

We submit that contrary to respondents -- defendants' representation the material is not otherwise available to the plaintiffs.

We must look at the contents of these debriefing statements to determining what kind of material is being suppressed and what justification there is for applying the privilege to all employees when there are such strong reasons for securing this information to make a proper resolution of judicial controversies.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Freeman.

Thank you Mr. Brown.

The case is submitted.