Decker v. Harper & Row Publishers, Inc. Page 2

Decker v. Harper & Row Publishers, Inc. general information

Media for Decker v. Harper & Row Publishers, Inc.

Audio Transcription for Oral Argument - December 16, 1970 in Decker v. Harper & Row Publishers, Inc.

Lee A. Freeman, Jr.:

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.

Warren E. Burger:

Are we bound to?

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.

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

Will versus --

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 --

Byron R. White:

That was a Bill of Particulars, wasn't it?

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.