RESPONDENT: Harper & Row Publishers, Inc.
LOCATION: United States District Court for the Northern District of Illinois, Eastern Division
DOCKET NO.: 113
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 400 US 348 (1971)
ARGUED: Dec 16, 1970
DECIDED: Jan 12, 1971
Facts of the case
Media for Decker v. Harper & Row Publishers, Inc.
Audio Transcription for Oral Argument - December 16, 1970 in Decker v. Harper & Row Publishers, Inc.
Warren E. Burger:
We'll hear argument in number 113, Decker against Harper and Row.
Lee A. Freeman, Jr.:
Mr. Chief Justice, may it please the Court.
Warren E. Burger:
Mr. Freeman, you may proceed.
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.