John Doe Agency v. John Doe Corporation Page 2

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Media for John Doe Agency v. John Doe Corporation

Audio Transcription for Oral Argument - October 02, 1989 in John Doe Agency v. John Doe Corporation

Sandra Day O'Connor:

What constituted the compilation?

Edwin S. Kneedler:

I... I think... I think most... in the sense that the statute uses the term compilation, I think that once the, the Department of Justice, in this... in the course of this consultation said yes, indeed, these documents are relevant to our investigation, we want them, and don't disclose them, we think at that point the records were, were gathered together or incorporated--

Sandra Day O'Connor:

The request by the agency to withhold them constitutes a compilation, in your view?

Edwin S. Kneedler:

--Well, there are several senses in which they could be.

I... I think... I think the initial sense--

Sandra Day O'Connor:

Is that what you are asking us to adopt as the rule?

Edwin S. Kneedler:

--Yes.

The Court doesn't have to adopt that... the Court doesn't have to go that far in this case because the records were subsequently transphysically transferred to the second agency, and they are included in a larger collection of documents that the second agency has.

Sandra Day O'Connor:

Well, one could take the position that you have to physically assemble the documents somehow, I suppose?

Edwin S. Kneedler:

Or, or gather them, take, take them together.

That, that would be one possible construction, I suppose, of, of the Act.

And here that was done, because the second agency gathered the documents, put them... put them in its files, which concededly, its files concededly--

Sandra Day O'Connor:

Well, depending upon the timing.

Now, you could read the statute as meaning they have to be compiled when the request is made, I suppose?

Edwin S. Kneedler:

--I, I don't think that... I don't think that construction would be... would fit with the sense of the statute.

This isn't a situation in which there... in which there should be a race to the documents in the sense of who has a prior lien on them, or something like that.

This--

William J. Brennan, Jr.:

When do you say, Mr. Kneedler, they were compiled?

Edwin S. Kneedler:

--Excuse me, when?

William J. Brennan, Jr.:

When?

Edwin S. Kneedler:

When.

Well, in our... it is our view that they were compiled at the time that the second agency, through the... speaking through the Assistant United States Attorney, said yes, those documents are included in the subject matter of our investigation.

After the first agency consulted with the second agency.

William J. Brennan, Jr.:

Well, the second is the FBI, is that it?

Edwin S. Kneedler:

Uh, yes.

Uh--

William J. Brennan, Jr.:

And the first is DCAA?

Edwin S. Kneedler:

Uh yes, that is... yes.

William J. Brennan, Jr.:

Were they ever compiled by DCAA?

Edwin S. Kneedler:

Yes.