Federal Trade Commission v. Grolier, Inc.

PETITIONER: Federal Trade Commission
RESPONDENT: Grolier, Inc.
LOCATION: U.S. Court of Appeals for the Fifth Circuit

DOCKET NO.: 82-372
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 462 US 19 (1983)
ARGUED: Mar 29, 1983
DECIDED: Jun 06, 1983

Daniel S. Mason - on behalf of the Respondent
Kenneth Steven Geller - on behalf of the Petitioners

Facts of the case


Media for Federal Trade Commission v. Grolier, Inc.

Audio Transcription for Oral Argument - March 29, 1983 in Federal Trade Commission v. Grolier, Inc.

Warren E. Burger:

We will hear arguments first this morning in Federal Trade Commission against Grolier Incorporated.

Mr. Geller, you may proceed whenever you are ready.

Kenneth Steven Geller:

Thank you.

Mr. Chief Justice, and may it please the Court:

This is a Freedom of Information Act case in which the Respondent, Grolier Incorporated, seeks access to work product prepared by Federal Trade Commission attorneys for a civil action that ended several years ago.

The Commission denied the FOIA request on the ground that the documents were protected by the attorney work product privilege and were therefore exempt from disclosure under Exemption 5 of the FOIA.

Exemption 5 protects against mandatory disclosure of memorandums or letters that would not be available by law to a party in litigation with the agency, and it's quite clear from the legislative history of the FOIA and from this Court's decisions that Exemption 5 incorporates the work product privilege and is intended to protect the work product of Government attorneys against mandatory public disclosure.

The Court of Appeals nonetheless ordered the documents disclosed.

The D.C. Circuit held that attorney work product from terminated litigation remains privileged only when litigation related to the terminated action exists or potentially exists.

We have sought review of this holding because it's contrary to every other appellate ruling on the temporal scope of the work product privilege and because it would have a particularly devastating effect on the conduct and working papers of Government attorneys.

Now, the facts of this case can be briefly stated.

In 1972 the Government brought a civil action against the Americana Corporation, which is a wholly owned subsidiary of Grolier, charging Americana with violating a 1949 cease and desist order prohibiting false advertising and misrepresentations in the door to door sale of encyclopedias.

The suit was dismissed in 1976 when the FTC refused to comply with a discovery order requiring it to turn over certain documents relating to a covert investigation of Americana's sales techniques.

In 1978 Grolier brought this FOIA suit seeking access to records relating to the Americana investigation.

In response, the FTC turned over literally 7,000 pages of documents, but it withheld a very few documents on the ground of attorney work product.

The district court conducted an in camera examination of the disputed documents and agreed with the FTC that they constituted attorney work product.

The district court found that the documents encompassed opinions by FTC attorneys regarding the evidentiary needs of the Americana action and discussed specific methods of obtaining evidence for use in that litigation.

The district court therefore found that the documents fell squarely within the work product privilege and were therefore exempt from disclosure under Exemption 5 of the FOIA.

John Paul Stevens:

Mr. Geller, are these documents among those that were refused to be disclosed pursuant to the 1976 order?

Kenneth Steven Geller:

I believe they are.

John Paul Stevens:

So they're the same documents in both cases?

Kenneth Steven Geller:

I believe some of them are the same documents.

As I noted a moment ago--

Harry A. Blackmun:

And the Government took no appeal or sought review in any way?

Kenneth Steven Geller:

--That's correct, of the dismissal of the Americana action.


Kenneth Steven Geller:


The Court of Appeals--

Sandra Day O'Connor:

And Mr. Geller, in the earlier action, as I understand it, the district court had actually ordered that the documents be disclosed under Rule 26; is that right?

Kenneth Steven Geller: