Kerr v. United States Dist. Court for Northern Dist. of Cal. – Oral Argument – November 11, 1975

Media for Kerr v. United States Dist. Court for Northern Dist. of Cal.

Audio Transcription for Opinion Announcement – June 14, 1976 in Kerr v. United States Dist. Court for Northern Dist. of Cal.

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Warren E. Burger:

We will hear arguments first its morning in Kerr against the District Court of the Northern District of California number 1023.

Mr. Mayer you may proceed whenever you are ready.

Karl S. Mayer:

Thank you, Your Honor.

Mr. Chief Justice Burger, and may it please the court.

I am Karl Mayer, Deputy Attorney General of the State of California.

I represent petitioners in this action, the Director of Corrections of the State of California and the Chairman and members of the California Adult Authority, which is the State Parole Board.

William J. Brennan, Jr.:

Mr. Mayer, may I ask, did this case go to trial?

Karl S. Mayer:

No Your Honor.

William J. Brennan, Jr.:

It did not.

Karl S. Mayer:

There was a trial date that was changed to November 10, and that has since been withdrawn and there is a present no-trial date.

William J. Brennan, Jr.:

So this issue is still alive, I had the impression of (inaudible) the purposes of the final hearing.

Karl S. Mayer:

Yes Your Honor, counsel for the plaintiffs below had expressed to the Court in a suggestion of mootness.

Their willingness to proceed with trial without the documents.

At that time, there was a trial date of September 25, there had been proceedings in the District Court since then.

And on October 23, as I recall, there was a scheduled pre-trial conference before the District Court.

Three days before that on October 20, the District Judge had sent a notice to the Ninth Circuit Court of Appeals, noticing the apparent necessity of a three-judge court.

At the formal pre-trial conference on the 23rd, as I recall today, the topic of the three-judge court was again broached.

And there was some discussion, and the way it was left was that the pending trial date of November 10 was withdrawn with further proceedings on the three-judge court question, now scheduled for November 20.

William J. Brennan, Jr.:

(Inaudible)

Karl S. Mayer:

As to a necessity of a three-judge court for the trial below.

William H. Rehnquist:

(Inaudible) from the amended complain that the plaintiffs filed the claim of the three-judge court?

Karl S. Mayer:

Yes Your Honor, the amended complaint was filed July 1 of this year, 1975.

Our suggestion of the necessity of a three-judge court was filed some two or three weeks after that.

And a notice has been pending in the District Court since but not dispose off.

And then October 20, the District Judge did send the notice to the Ninth-Circuit, the three-judge court has not yet actually been convened.

The notice of its necessity has gone to the Ninth Circuit.

Warren E. Burger:

The three-judge court has convened to deal with these issues, then is there any case for decision here?

If the same District Judge who tried it, District Judge Weigel, was it?

Karl S. Mayer:

Yes, Your Honor.

Warren E. Burger:

And he is the Judge — when you clarified that, has he requested the designation of a three-judge court now?

Karl S. Mayer:

His notice to the Ninth Circuit read that, this case appears to be a case requiring a three-judge court, according and as best I can, and I hereby certify it to you the Chief Judge of the Ninth Circuit as a Case requiring the convening of three Judges.

Warren E. Burger:

That three-judge court that is designated has reasonably assumed that he will or ought to vacate his judgment in this case?

Karl S. Mayer:

I believe that if the three-judge court is actually convened, and the three Judges are appointed and said that we as defendants in the action below could renew our motions before the three Judges together for their consideration.

And I believe that consideration could be de novo, and they could the three Judges together, could in effect overrule the single-Judge, his earlier rulings.

Potter Stewart:

Would these rulings be outstanding until they were overruled?

Or would they—

Or would they all be wiped out after the three-judge court were named?

Karl S. Mayer:

I don’t think the fact of convening the three-judge court would irradiate the existing single-judge orders, and certainly will not eradicate the Ninth Circuit opinion.

Potter Stewart:

It will be the same case, with the same number and everything, except just now three-judge?

Karl S. Mayer:

Yes, Your Honor.

Potter Stewart:

Three-Judge Court?

Karl S. Mayer:

Yes.

William H. Rehnquist:

Would all the issues be automatically be referred to the three-judge District Court or just those which require the convening of the Court of the first instance?

Karl S. Mayer:

I believe that the entire case would go to the three-judge court.

William H. Rehnquist:

Under the plaintiff’s complaint before it was amended last summer, no one made any contention that there was need for a three-judge District Court?

Karl S. Mayer:

That is correct, Your Honor.

Lewis F. Powell, Jr.:

Mr. Mayer.

Karl S. Mayer:

Yes, Your Honor.

Lewis F. Powell, Jr.:

I wish you would clarify for me the status of the demand for these documents you said, and the brief state, that the plaintiffs below were willing to waive their demand for the documents.

Has that waiver been withdrawn?

Karl S. Mayer:

Your Honor, the topic first came up in proceedings in the District Court I believe in July.

And at that time there was an oral statement in open court by counsel for plaintiffs that they would, would, they have not yet, they would stipulate to withdrawal of their request for the documents.

They have not in fact withdrawn their request for documents.

And the District Court orders, which compel their production are outstanding, as is the published the published Ninth Circuit opinion.

(Inaudible)

Karl S. Mayer:

They are stated by the order of this Court.

Yes, Your Honor.

Lewis F. Powell, Jr.:

(Inaudible)

Karl S. Mayer:

But for the order of this Court stating the District Court’s orders, is my understanding that the orders would become automatically effective, it is not my understanding —

William J. Brennan, Jr.:

(Inaudible )that if a three-judge court is convened, then you would be at liberty to renew the motion made before the single-judge and denied by him, is that right?

Karl S. Mayer:

Yes, Your Honor.

William J. Brennan, Jr.:

Well know, what are those motions?

Those are motions, what?

To what?

In respect to the—

Karl S. Mayer:

Well, basically these were motions in opposition to the motions to compel discovery.

I would think until our motions are made we would also have to ask the three-judges’ to stay, the single-judge’s order.

We asked, we had to go to the Ninth Circuit to get status of the Judge’s orders, he was not willing to state them on his own.

And I would not think there would be any different result if we were asking the three-judges’ to review the single-judges’ order.

William J. Brennan, Jr.:

But we don’t know that?

Karl S. Mayer:

No, I don’t, Your Honor.

William J. Brennan, Jr.:

But I take it if (inaudible)

Karl S. Mayer:

Yes, Your Honor.

William J. Brennan, Jr.:

And if that would be denied, I take it the state may appeal to the Court of Appeals (Inaudible)

Karl S. Mayer:

Your Honor, on the top of my head I am not sure whether it would be an appeal or a writ, petition for mandamus.

Yes Sir, we would seek review to the Ninth Circuit.

William J. Brennan, Jr.:

(Inaudible)

Karl S. Mayer:

Correct, Your Honor.

Warren E. Burger:

But you indicated that Judge Weigel had already certified it to the Chief Judge of the Ninth Circuit as a Three-Judge Court Case, isn’t that correct?

Karl S. Mayer:

That is correct, Your Honor.

Except that on November 20, there are further proceedings before Judge Weigel upon his, where he will reconsider his notification.

And I believe he contemplates that at that time, either withdrawing or not withdrawing the notification.

The three-judges as I say have not yet actually been appointed.

Thurgood Marshall:

But the Chief Judge has still appointed it?

Karl S. Mayer:

Yes, Your Honor.

Thurgood Marshall:

He appointed today.

Karl S. Mayer:

Yes, Your Honor.

Thurgood Marshall:

And then you make a motion and the three-judges’ agree with you, and that it was before us?

Warren E. Burger:

Well Counsel —

Karl S. Mayer:

Excuse me.

Thurgood Marshall:

Do you understand?

Karl S. Mayer:

No, I understand, Your Honor.

I guess a problem in my head is this, if the question is before this court, as to whether the other two Judges of the three-judge court would have jurisdiction to consider the orders in the first instance.

This Court has stated the single-judge District Court’s order.

Now as long as the case, and those questions are now before this court, I would feel the improper for the other two Judges and the single-judge who also be considering —

Potter Stewart:

Or in any event they might well feel?

Karl S. Mayer:

Or they might well feel that way, yes Your Honor.

Thurgood Marshall:

Could we just maintain our stand until the three-judge court acts.

Karl S. Mayer:

I would think if this court—

Thurgood Marshall:

We have already stated.

Karl S. Mayer:

Yes, Your Honor.

Thurgood Marshall:

Could we continue to stay until the three-judge court acts?

Karl S. Mayer:

I would think as Your Honors, said this in a minute order or something, then the three-judges would feel perhaps more free to do that?

Warren E. Burger:

Well I suspect that one of the things to be considered on the November 28th hearing is whether the District Judge had any jurisdiction and has any jurisdiction to do anything in this case, since it is pending here?

What authority has he got after this court has granted the writ here to deal with the case at all, except in a purely ministerial way?

Karl S. Mayer:

Yes, Your Honor.

That is a question that I am uncertain about.

The distinction is this, is that the certiorari has been granted as to interlocutory discovery orders.

And we have searched but have not found, expressed authority that would state that such a limited grant, a certiorari grant, to a limited part of the case would also state the entire proceedings below.

I think Judge Weigel believes that it is not improper for him to consider these other matters.

Warren E. Burger:

Well, I think you perhaps better address yourself now to the main arguments rather than this exploration unless there are further questions from the jurisdiction point.

Karl S. Mayer:

Petitioners come before the court very basically because the District Court has granted indiscriminate demands for documents.

Indeed the demands are for entire categories of documents, they are State Government documents, and the documents are of conceded confidentiality.

In doing this, the District Court did not look at a single document in question, although the petitioners offer to present them to the court for that purpose prior to their disclosure directly to the adversary.

Also in doing this, the District Court’s order of December three, the order affecting the contents of inmate files was not only precipitated without the Judge having seen the documents, but is effectively a prospective order, which requires the petitioners to produce the entire contents of any inmates file that is designated by plaintiffs in the future.

Up to a number of 200 files, some 20 to 30 files have been designated leaving approximately 170 inmates whose names can be picked at will by counsel for plaintiffs.

They have not yet been picked.

When picked under the District Court’s order, we must turn that entire inmates’ file directly over to the adversary.

We cannot withhold any document for any reason.

Potter Stewart:

And what briefly does an inmates’ file contain? Consist of?

Karl S. Mayer:

The inmates’ file starts out with basically certain documents from the committing court, the Trial Court, the judgment of commitment, a probation report, statements by the Judge and the District Attorney and Defense Counsel as they exist.

Potter Stewart:

Inmate statements, public statements, or private statements may just for the purpose of that file?

Karl S. Mayer:

They are private statements for the purpose of the file as to the Judge and the District Attorney.

The statement of the defense counsel –it is up to defense counsel.

What he says is in a probation report, the statement may also appear in other documents which may or may not make it a public statement.

But basically they are in the probation report which itself is not a public document.

Then the inmate goes to a reception and guidance center in there, they may have some documents begins to accumulate.

It is classified as — he gets custody classifications, he examined by a physicians, he is examined by — he is given psychiatric work-ups, he is tested for his ability to read, some assessment is made up of his mental standing.

As he proceeds through system assignments to other institutions are made, and each of these steps is backed-up by papers in the file.

There is a copy of his background in effect a wrap sheet of his prior commitments and charges to the normal wrap sheet with which we are all familiar.

There are statements, they are characterized as a pre-board reports, statements of a correctional counselor who knows and is familiar with the inmate, and it is basically a report to the adult authority for consideration at the time of parole consideration.

Either these kinds of documents.

Also in there are disciplinary matters.

If the inmate violates a rule of an institution, there is a report on that, when he has his hearing under the wolf case there is a report of its disposition of people who were at the hearing.

If other inmates have informed on this inmate of one act or another that he has done which constitutes a violation of prison rules, that informant statement is in the record.

If relatives and friends from the outside write to the adult authority or to the department of corrections with comments on the inmate, those papers are all in the file.

Basically everything concerning the inmate, all information concerning the inmate goes into one file, into a central file, so called.

Thurgood Marshall:

Mr. Mayer.

Karl S. Mayer:

Yes, Your Honor.

Thurgood Marshall:

Is that file available to anybody outside of the institution normally?

Karl S. Mayer:

No.

Well, by outside of the institution it is available to the adult authority, which the pro-board.

Thurgood Marshall:

I understand that, but nobody else?

Karl S. Mayer:

Not normally.

Thurgood Marshall:

—statute a custom?

Karl S. Mayer:

It is by both, there are statutes referring to particular documents, there is a custom referring to the entire, and Department of Regulations referring to the entire package.

There are situations where other people can see it, the defense counsel can see it.

If the inmate is involved in a crime, and he has a defense counsel, his defense counsel has access to his clients file, and there are other circumstances.

William J. Brennan, Jr.:

I gather this is documentation before the parole board when they are considering whether he should be released on parole?

Karl S. Mayer:

Yes, Your Honor.

William J. Brennan, Jr.:

At that junction, at the boards hearing, the prisoner has no attorney?

Karl S. Mayer:

That is correct, Your Honor.

William J. Brennan, Jr.:

In other words, a determination would be made by the parole board whether or not to release, in part at least, I have some instances entirely upon the contents of the prisoners file?

Karl S. Mayer:

That is correct, Your Honor.

Warren E. Burger:

Is the initial use of that file by the adult authority for the purpose of fixing the sentence?

Karl S. Mayer:

Yes, the first —

Warren E. Burger:

The Judge does not sentenced in California—

Karl S. Mayer:

That is correct, Your Honor.

Warren E. Burger:

Except in accordance with law, and then the adult authority makes the decision from that point on.

Karl S. Mayer:

Yes, Your Honor.

Warren E. Burger:

Is the file then roughly comparable to the file before a United States District Judge, for example, in making a sentence after he has the pre-sentence report?

Karl S. Mayer:

It is that kind of thing as much more extensive because the information generated in the file has been generated over a longer period of time.

Also, I am not sure all that is in the pre-sentence file for a District Judge, but it would basically that kind of file —

William J. Brennan, Jr.:

— document?

What is before the District Judge, will not all have the prison documentation —

Karl S. Mayer:

Correct, Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Karl S. Mayer:

Yes, correct.

Now, however the inmate before he goes in to his parole consideration hearing may himself look at the file.

And there are extensive procedures for the inmate to, if he sees something in the file that he feels is incorrect, to take administrative procedures to correct it.

There are procedures within the Department of corrections as well as within the adult authority for the appointment of investigators—

William J. Brennan, Jr.:

When the board is fixing the sentence, is this after a hearing at which the prisoner is present before the board?

Karl S. Mayer:

Yes, Your Honor.

William J. Brennan, Jr.:

And so at that time do the board and the prisoner together examine the contents of the file?

Karl S. Mayer:

They don’t together examine the contents, they talk about the contents.

William J. Brennan, Jr.:

The prisoner is aware of everything that is in the file?

Karl S. Mayer:

Except for the highly confidential items, Your Honor, yes.

William J. Brennan, Jr.:

And that would be what?

Informants, confidential informants’ statement?

Karl S. Mayer:

It would be a confidential informants’ statement.

Karl S. Mayer:

The file often includes information on the crime partner of the particular inmate, that information, there is a strong policy of not letting one inmate see another inmate’s information.

That would be withheld.

Some psychiatric reports are not shown to the inmate because the psychiatrist feels that it would not be good for him to see his own psychiatric report.

Your Honor, I wish to emphasize one very basic point I think which runs through our whole position here and that is this, the state is not attempting to in effect lockup these documents for good that no one can see them or that the court can not see them.

We are asking for an only reasonable and informed evaluation of them before they must be turned over to the adversary.

William H. Rehnquist:

I take it, Mr. Mayer, from the part of your brief pages 64, 65, and 66, that one of your contentions is that in weighing that type of an approach, the fact that the State owns these documents and the State itself could not be made a party to this action under the Eleventh Amendment.

That is itself is a factor which should be weighed against extensive discovery.

Karl S. Mayer:

That is correct, Your Honor.

If the documents are in fact important to the plaintiffs’ case, they should be disclosed.

If they are not important to the plaintiffs’ case, in fact important to plaintiffs’ case, they should not be disclosed.

And I think that —

William J. Brennan, Jr.:

(Inaudible) of every 20 years, or something like that?

Karl S. Mayer:

The plaintiffs initially requested one of every 20 inmates’ files.

The court’s order—

William J. Brennan, Jr.:

Selected at random I gather?

Karl S. Mayer:

Yes, Your Honor.

William J. Brennan, Jr.:

Yes.

Karl S. Mayer:

Now the Court’s order reads any 200 files, however of the any 200 inmates’ files but they get the entire file.

There is a sampling as to the identity of the inmate, but as to the documents to be produced, there is no sampling, everything goes.

And when a sense of probability, it is in my mind a certainty that in an entire inmates’ file there is something in some inmate of the 200 inmates’ file that is highly confidential, and that is not in any way relevant to the Civil Rights action before the District Court.

That must be a certainty.

And yet the prospective terms of this order require everything without regard to its nature of degree of its confidentiality must be turned over directly, directly to the adversary.

William J. Brennan, Jr.:

No provisions for in camera examination by the Judge?

Karl S. Mayer:

There is none whatsoever, Your Honor.

William J. Brennan, Jr.:

Was it suggested?

Karl S. Mayer:

It was suggested and refused.

Indeed with respect to the inmate files, the petitioners attempted, they could not look at any of the documents until the inmates’ names were given.

When they were given certain documents were withdrawn from the files, everything else was given to counsel to look at.

The counsel found this unacceptable, made a motion for enforcement clarification and sanctions before the District Court.

And when that was heard, the District Court made it very clear that by withholding any documents from production directly to counsel was viewed as boarding on contempt.

Karl S. Mayer:

And on the December 3 order, subsequently came out is very clear in the court’s explicit language in there as to what must be provided that everything must go directly to counsel.

Harry A. Blackmun:

Mr. Mayer, did the State ever give any concrete reasons why the documents should be regarded as confidential?

Karl S. Mayer:

Yes, Your Honor.

With respect to the documents in the inmate files, when the documents were withheld as to each inmate’s file, there is a statement of confidentiality I believe as it is characterized as, and this appears — there is a series of these appearing in the single appendix at the beginning at page 502.

They are called Confidential Case Records, these are Department of Correction’s documents.

And in these is listed the documents withheld from each particular inmate’s file that was in fact furnished.

And for example, if I may refer the Court to the Confidential Case Record statement appearing on page 516 of the appendix.

It reads, as characterizing or describing a document withheld, memo of June 6, 1972 identifies name of informant concerning escape attempt, disclosure with jeopardized safety and welfare of informant.

Of course, below that is another document to which I had made earlier reference, cumulative case summary of crime partner, identifying him by name.

I can think of no clearer statement that putting the Court on notice that a document is of a confidential nature, and such documents we feel at least deserve before their compelled production deserved an examination by the Court.

The other half of the coin of course is our position, is that the Court can deny in this case the discovery without looking at the documents, but cannot grant it without looking at the documents.

And the reason for that is that the case in a District Court is not a case of a single inmate attacking his parole consideration procedure, where he needs to know the documents considered at that procedure.

The litigation below is a general litigation, thereafter these documents, the plaintiffs are after the documents as examples, as something a basis for information to the Court that the Adult Authority, the pro-board relies on information which is not always reliable.

They don’t need every single document and 200 inmates’ files to advance that contention.

Lewis F. Powell, Jr.:

Mr. Mayer.

Karl S. Mayer:

Yes, Your Honor.

Lewis F. Powell, Jr.:

I have before me the opinion of the Ninth Circuit Court of Appeals, the petition for certiorari, index(a), page 13, I would like to read one sentence, have you follow me and then relate it to your argument.

The sentence is, in the only full paragraph on page is Roman 13, beginning to last sentence in that paragraph, since there maybe information –do you have that?

Karl S. Mayer:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Since there maybe information in the requested documents which should be protected, the petitioners may assert a privilege to a particular document or class of documents, and perhaps seek in camera inspection at the time the documents are discovered in the District Court.

Now, I understood you to say that you were making no blanket objection to these documents that the State would be satisfied if the District Court examined each one of them, in camera, before they were used in the trial.

Does that sentence meet your objection, and if not why?

Karl S. Mayer:

It does not, Your Honor.

I have responded to that in our reply brief in footnote 8, and that response is this, that sentence in the District Court’s opinion is stated in the mandamus proceedings, that relate to, only the personal files and other confidential writings of the adult authority.

At the same time the Court was considering this opinion, it also had before it the mandamus petition, a separate petition covering the inmate files.

And the two of the judges that sat and undecided summarily to reject the mandamus on the inmate files, sat on this opinion that covered the personnel files.

Now, in the inmate files case, when we did take, and we did attempt to withhold a few documents, to which I have just referred now, the Confidential Case Records list of documents from inmate files.

We have attempted to withhold them as a preliminary matter as soon as those files were designated or first chance to withhold them.

We did it a preliminary matter, it precipitated a motion by plaintiffs’ informing the court that we were violating the court’s order, when the matter was heard the District Court said this is bordering on contempt.

And the court’s December three order makes very clear that what we did was a violation of the District Court’s order, by withholding temporarily any documents from provisions directly to counsel.

Karl S. Mayer:

That order was before this panel of the Ninth Circuit when it made this statement, and yet resulted in a summary denial of mandamus.

It was a more aggravated situation indeed than the personnel file situation before the court here.

The second problem is that it is not clear what the Ninth Circuit, what the Court of Appeals envisions by the phrase at the time the documents are discovered in the District Court.

The District Court orders compel the furnishing of the documents directly to counsel.

There is not a proceeding where documents are exchanged in open court, they are furnished directly to counsel.

And with a personnel files, we did ask in the District Court for an in camera inspection, the contents of them and the District Court expressly said no, furnish them directly to council.

But we had already done that.

And for that reason, it is unclear to me what the Ninth Circuit envisions in that statement, and in any event, it certainly would not apply to the inmate files, and the contents of the inmate files.

William J. Brennan, Jr.:

(Inaudible) this certainly would indicate, on the face of it, the Court of Appeals thought that you have the advantage, both of the privilege and in any event to seek in camera inspection.

Karl S. Mayer:

Yes, Your Honor.

William J. Brennan, Jr.:

And was this before the Court of Appeal, before the District Judge after the decision of the Court of Appeals?

Karl S. Mayer:

No, Your Honor.

The Court of Appeals decision this January 1975, and the District Court’s order on the personnel files was June 1974, and the order covering the inmate files was August 12, 1974 and December 3, 1974.

Warren E. Burger:

Has he modified his order ever since the Court of Appeals?

Karl S. Mayer:

No, Your Honor.

Indeed—

Warren E. Burger:

— retain jurisdiction to modify an order would be, do you think?

Karl S. Mayer:

Well, Your Honor, there is a strange; I don’t say strange, there is a; I will say strange, there is a strange situation going in this Case down there.

The Court of Appeals order for the personnel files came out in June of 1974, and we promptly petitioned for a mandamus in the Court of Appeals.

Potter Stewart:

You mean the District Court’s order?

Karl S. Mayer:

The District Court’s order was June 1974—

Potter Stewart:

Summer of 1974, then you went to the Ninth Circuit—

Karl S. Mayer:

We went to Ninth Circuit for a mandamus.

The Ninth Circuit ordered that an answer to our petition be filed, and indicated there and state the District Court’s order on the personnel files.

That is August and September 1974.

William J. Brennan, Jr.:

So I gather, Mr. Mayer, you could have gone back to the Court of Appeals but you weren’t satisfied what the Court of Appeals gave you say a petition here, is that it?

Karl S. Mayer:

That is not correct, Your Honor.

We have already been to the District Court, on that very question—

William J. Brennan, Jr.:

(Inaudible)

Karl S. Mayer:

No, Your Honor.

Karl S. Mayer:

If I may explain, there were two mandamus petitions going on at the same time before the same Judges of the Ninth Circuit.

William J. Brennan, Jr.:

Is this the review of the mandamus denial?

Karl S. Mayer:

Both are.

William J. Brennan, Jr.:

Both are.

Karl S. Mayer:

And both were denied one with an opinion and one without, one is a summary denial.

The summary denial is the more aggravated situation, the inmate files.

The confidential contents of inmate files was summarily denied in December—

William J. Brennan, Jr.:

— you suggest would have not applied to the inmate files, but only the personnel?

Karl S. Mayer:

Well, that is the other mandamus case, the personnel file case.

William J. Brennan, Jr.:

This opinion is written on that case —

Karl S. Mayer:

Yes, Your Honor.

Now, at the same time, the same court had before it the inmate file case and summarily denied it, the more aggravated case.

And for us to now go back and say, our petition for mandamus on the inmate files and weighed about five pounds and everything was before the court, and to then go back and say look at it all again, when they have just got them looking at it, weeks before, we thought would not be appropriate.

I am sure, my time has expired.

Warren E. Burger:

We have not charged you the time when we interrogated you about this jurisdiction matter.

Karl S. Mayer:

Thank you, Your Honor.

Warren E. Burger:

You will get a white light of five minutes.

You are not required to use all your time.

Karl S. Mayer:

Yes, Your Honor.

Your Honor under Rule 26(b), the scope of discovery in the District Court is limited to matters which are relevant and not privileged.

In this case, both factors arouse.

The relevance of the documents to the action is most tenuous, speculative or conjectural.

And the question of privilege could not have been resolved by the District Court without having looked at any single document which it ordered to be produced.

Now, the question of privilege under Rule 26(b) is difficult.

The rule does not define what privilege is, there is no statute that defines what privilege is, the hope for it and the evidence code failed and precipitated a case-by-case analysis of it.

The petitioner’s position is that everything, what privilege means is not discoverable, nothing more and nothing less.

Some privileges are absolute.

In other words, in every case the interest in preserving confidentiality will supersede any demand before its disclosure.

And as far as, I can tell, the supply is only to military or diplomatic secrets.

And with just about everything else in the world, the privilege depends who wants it and why, and under what circumstances, it also depends on what it is.

Karl S. Mayer:

And these factors beg of the balancing and informed balancing of the competing interest involved, and that is all the petitioner’s have sought bellow.

The confidentiality of the documents is not contested at least insofar as they are of a confidential nature.

The relevance, the need for the documents is highly contested.

And we ask that at the minimum, the matter would be sent back to the District Court, so that the Judge may either deny the discovery altogether which would please us immensely or at the minimum.

Look at the documents before compelling their disclosure to the adversary.

Thank you, Your Honor.

Warren E. Burger:

Well, Mr. Bergesen.

B. E. Bergesen, III:

Mr. Chief Justice, may it please the Court.

I would like to, I think I ought to begin with this same jurisdictional matters, but if Your Honors, would indulge me I would like to respond only to one point of my opponent because it was discussed so extensively here at the end of his argument.

And that is we disagree entirely with his reading of the effect of the Ninth Circuit’s opinion.

There were indeed two mandamus proceedings, there was one which was summarily denied in December of 1974 without opinion, which did have to do with the central files.

But then came January of 1975, and this Court’s opinion, the full opinion although it dealt with other types of documents of the Ninth Circuit.

Now, our position quite simply is that is the law of the Circuit, that is the law that the District Judge is now bound by with respect to whatever type of documents —

William J. Brennan, Jr.:

Being that the outstanding orders or prior modification out of conform with this opinion?

B. E. Bergesen, III:

That if, yes, Your Honor.

That if they went back to the to the District Court once the stay, if the stays were vacated, then the District Court would have to proceed in conformance with—

William J. Brennan, Jr.:

That you would not be entitled to anything?

As to which a privilege was determined—

B. E. Bergesen, III:

The way I read the opinion, Justice Brennan, they would be permitted to make the type of showing, and that is what really is at stake here.

The type of showing that they ought to have made, but didn’t make initially and which is the basis of the Ninth Circuit.

William J. Brennan, Jr.:

And all which involves also in camera inspection?

B. E. Bergesen, III:

It may, and that would depend upon the showing that they would make.

In other words the Ninth Circuit held that they did not make the proper showing, either to have the privilege sustain or to get in camera that they had to make a proper showing that they did not make it.

But we would say that the opinion binds and, because the other mandamus was prior.

Thurgood Marshall:

Mr. Bergesen, do you think that the District Court had the right to consider your amended complaint, while the case was here —

B. E. Bergesen, III:

Yes, Your Honor.

It is our position that what came here, what was staid of course was just the discovery orders and that only that part of the case which applies to the discovery orders and our right to these documents—

Thurgood Marshall:

So that under your theory a three-judge court would have been convened, could have heard this case and decided it before now, and then will be based on —

B. E. Bergesen, III:

Yes Sir Justice Marshal, that is my position.

And I wonder if I could address myself to the two questions of mootness and three-judge court, and I will take them in that order if that is alright.

B. E. Bergesen, III:

We did make a suggestion in late July after cert was granted here.

We did file a suggestion of mootness because what happened quite simply was we were faced with a very difficult decision, either to postpone this trial for perhaps a year, as it then appeared last summer.

And wait for what might happen here in the documents that we might or might not get, or go to trial, and we opted for a number of reasons finally to go to trial.

And in order to not have this, as a reason for delay below as it had been used below and to have to litigate two cases in two courts with the time expensed.

Especially when we saw that nothing could be gained here, we did file a suggestion of mootness which this Court of course put over until this hearing.

William J. Brennan, Jr.:

Why Mr. Bergesen, did you go back to the District Court in those circumstances?

Perhaps ask first for lifting the stay for the purpose to ask if the orders be resented, if you no longer want the benefit of?

B. E. Bergesen, III:

In that respect Justice Brennan, maybe we should have done that.

We thought at the time, we were foolish I guess, but we naively thought that the trial date was affirmed that we were going to definitely go to trial.

William J. Brennan, Jr.:

Well do you or don’t you want the benefit of the orders now?

B. E. Bergesen, III:

Our position this morning that the intervening events of the last few weeks and months, mean that in all candor, we would say that if the trial is further delayed and delayed and this Court comes down with an opinion, which gives us the benefit of the documents, yes Justice Brennan, we would want them.

And so to get right to the point on mootness, I think there is two determinations as to two questions —

William J. Brennan, Jr.:

You would not want them except under the conditions of the Court of Appeals has laid down, namely that the State may assert privilege and perhaps as for in camera inspection.

B. E. Bergesen, III:

And make a proper showing.

Yes, but it seems to me that the mootness turns on two questions.

Number one, is the trial date so speculative as in perhaps the (Inaudible) that is the closest analogy I can think of as to really not permit a mootness determination.

Byron R. White:

Do you understand the State wants here that it has not already gotten to the Court of Appeals, namely a chance to raise and claim and justify its privilege in the District Court?

B. E. Bergesen, III:

In the District Court, this is the whole burden of our case.

They did not make, they did not begin to make —

Byron R. White:

What does the State wants?

B. E. Bergesen, III:

They apparently want to go back to the District Court and not have to make the showing that the Court of Appeals says they have to make, that is the only thing I can figure out.

Byron R. White:

They want us to hold that just based on whatever claim they made on the District Court initially was enough?

B. E. Bergesen, III:

That the District Court was required without motive to inspect all the documents in camera, that they could go in and say, here they are Judge we say they are confidential, you have got to inspect them in camera.

Thurgood Marshall:

You have been back and forth in District Court, even if the case has been here, you have no time, and told the District Court what you are not telling us about braving this right.

B. E. Bergesen, III:

And that is the second issue on which —

(Inaudible)

B. E. Bergesen, III:

Yes, this is what I am going to say right now.

Potter Stewart:

I mean, I am for one, I manage to allowing you to finish what you have to say about mootness.

B. E. Bergesen, III:

Here is what we told the District Court.

We have told them from time to time, we want to go to trial, we are willing to go to trial without the documents, we will not allege on appeal, a error by not having the documents and I believe it was on October 17th I was advised by telephone.

B. E. Bergesen, III:

We filed a Certificate of Readiness when we did have a November 10 trial date saying we relinquish all our rights to the documents.

Now, if this Court were to hold that that were irrevocable relinquishment, this certificate of readiness, then it occurs to me, it seems to me the case would indeed be moot.

Thurgood Marshall:

What is the paper where you said you relinquish it?

Where is that paper that you filed in the District Court?

B. E. Bergesen, III:

I believe, Justice Marshall—

Thurgood Marshall:

Well it is not here?

B. E. Bergesen, III:

No Sir.

It was filed by co-counsel, and I am told by—

Thurgood Marshall:

How can we hold something moot on a basis of a piece of paper that is not here?

Potter Stewart:

(Inaudible)

B. E. Bergesen, III:

We are not asking you?

I am not asking you this morning to hold the case moot, and I don’t think it is moot.

But I was trying to say in all candor that that seems to me that the two operative considerations are whether our statements in the District Court, including the certificate of readiness is an irrevocable relinquishment, which I don’t think it is but which this Court might rationally hold it is.

Lewis F. Powell, Jr.:

Are you saying now that you withdraw that, that you may take the position you may withdraw it in the District Court?

B. E. Bergesen, III:

I think so, Justice Powell, for this reason.

Two things have happened since then, first of all we had a pre-trial, we were going to go to a pre-trial conference in which the Court would issue a pre-trial order on October 23rd in which I think it would have incorporated that certificate into the order.

That never happened because a couple of days before the Judge certified it as a three-judge court matter.

So everything is up in limbo now and although I haven’t researched the matter, I would suspect that that is not an irrevocable —

Lewis F. Powell, Jr.:

In other words, you would insist on the documents?

B. E. Bergesen, III:

We would like to have the documents, yes Sir.

Potter Stewart:

But not—

B. E. Bergesen, III:

But not at the —

Potter Stewart:

The risk of delay.

Now, in addition to what you may or may not have ever filed in a District Court and apart of the question whether not you or may not withdraw that.

You have filed in this Court the following statement; respondents no longer seek any of the documents which are the subject of this appeal.

B. E. Bergesen, III:

Is that in our suggestion of mootness?

Potter Stewart:

I am reading in what you have signed and then filed in this Court?

B. E. Bergesen, III:

Yes, and—

Potter Stewart:

If that is true, even conditionally, shouldn’t we set aside or remand this case to the Court of Appeals with directions to have it set aside the District Court’s order.

And let everything start from scratch in the three-judge District Court, which is now going to be convened.

B. E. Bergesen, III:

Well, our—

Potter Stewart:

Then you will know whether or not there is going to be delay or not going to be delay, this would all be conditional.

B. E. Bergesen, III:

Well that is not our position, we—

Potter Stewart:

I read you what is your position?

At least was on August 1st of this year, you filed that and you have signed it.

Rightly Mr. Bergesen, yes your name is on this document.

B. E. Bergesen, III:

Is this the, this is the July suggestion of mootness?

Potter Stewart:

Yes of course it was August 1 —

B. E. Bergesen, III:

I believe there are two statements about relinquishment.

The first one, as the other side pointed out in their opposition to mootness, says we relinquish our right to these documents because we are going to trial.

Your Honor, I would say it is fair from the face of the document, and it has always been our position.

Because we have always wanted to document and we have always been successful in every Court below, and our right to the documents.

We have always made it clear that whatever relinquishment there was, was done because we thought we have an imminent trial date, and-

William J. Brennan, Jr.:

Because they aren’t conditioned then?

B. E. Bergesen, III:

Now because we thought we did, Justice Brennan, and it turned out time and again usually at the urging of the defendants.

The trial date kept getting put off and put off and put off and now we just don’t have that to.

Lewis F. Powell, Jr.:

I must say it is rare when a respondent makes a suggestion of mootness.

I gather it is rare still when nobody wants to disown it?

B. E. Bergesen, III:

It certainly is Justice Blackmun, and it puts me, I feel in an unusual position and yet at the same time, this was an unusual situation below, requiring us really to have to go to trial then.

And we were ready and we are ready, and our evidence is getting staler by the day and the month.

And this type of case presents peculiar problems with stale evidence and witnesses and interviewing them and getting into their files.

We had to say, last summer, we will either wait a year and wait on this decision here or we will go to trial without the documents and I would submit that is an unusual and difficult.

Harry A. Blackmun:

You made a choice, and you have told this Court that you have made that choice?

B. E. Bergesen, III:

That is right.

Harry A. Blackmun:

So it is not the end of it?

B. E. Bergesen, III:

I think if this Court has ruled at the time that we have filed our suggestion of mootness, when we urged it, I think that would have and should have been the end of it.

But I think the intervening events over which, for we have not been responsible.

Potter Stewart:

Well, what is that?

B. E. Bergesen, III:

Have changed the—

Potter Stewart:

Nobody is responsible for that?

B. E. Bergesen, III:

Not only the passage of time but the vacation of a series of trial dates, the certification of the case as a three-judge case, what looked liked a firm trial date when we filed that suggestion of mootness.

Potter Stewart:

But the intervention of the three-judge court complicates and may delay this even further.

Unless that slate is wiped clean and you present this matter de novo to the three-judge court?

B. E. Bergesen, III:

Well–

Potter Stewart:

Isn’t that fair to say?

B. E. Bergesen, III:

No.

Could I address myself to the —

Potter Stewart:

I hope you will?

B. E. Bergesen, III:

The three-judge court thing.

Our position would be this; it might be that the Judge will withdraw his certification because we think it is incorrect and not a three-judge court case or the Ninth Circuit will not appoint it.

But even if there is a three-judge court appointed it would sit as a District Court in the Ninth Circuit, and it would be bound by Kerr versus the United States District Court.

I think the question that hasn’t come up yet is whether, or maybe it did, whether if this three-judge court ruling is retroactive so the case is considered always to have been a three-judge court case.

Then was the petition for mandamus which resulted in the opinion of the court below, properly taken to the Ninth Circuit, or ought it to have been taken directly here.

And that in turn seems a little clouded by the recent case of MTM versus Baxley which indicates that perhaps it was correctly taken to the Ninth Circuit, although if this court were to hold that it was not.

Perhaps, a further question would arise as to whether it is properly here anyway because this Court could treat the cert petition as the petition we ought initially to have filed here.

I don’t pretend to have the answers but those seem to be some of the —

William J. Brennan, Jr.:

And you think we do?(Laughter)

Warren E. Burger:

We accept your outstanding invitation there wouldn’t be any Court of Appeal’s opinion to bind the three-judge court, will there?

B. E. Bergesen, III:

I am sorry, Chief Justice.

Warren E. Burger:

We accept your outstanding invitation proper to declare this case moot.

Does that not vacate the Court of Appeal’s opinion and the three-judge court would deal with this matter de novo?

B. E. Bergesen, III:

Well our, if that were correct, I feel that I would —

William J. Brennan, Jr.:

Well isn’t that correct — when we vacate a federal case as moot, we wipe out everything below.

B. E. Bergesen, III:

Oh certainly, Justice Brennan.

William J. Brennan, Jr.:

That would get rid of the Court of Appeals opinion.

B. E. Bergesen, III:

Oh yes it would, but I don’t feel—

William J. Brennan, Jr.:

And the District Court’s order.

B. E. Bergesen, III:

Oh yes it would get rid of everything and we would have a clean slate.

But with the intervening events I don’t think that I, although, I don’t think that I can, I think with respect to my obligation to my clients, continue my request for mootness.

I think that I have to say that the intervening, unless this Court holds that the previous events make it moot, I no longer as I stand before you today.

William J. Brennan, Jr.:

Well if we don’t hold you to it, to your August one submission, then are you here defending the judgment and supporting the opinion of the Court of Appeals from which the State has appealed?

B. E. Bergesen, III:

Yes we are, we are—

William J. Brennan, Jr.:

If you are and we affirm, then anyway, this whole business has to go back to allow the State proved privilege, or that there ought to be in camera inspection.

B. E. Bergesen, III:

If this Court affirms on the grounds given in the court below opinion, yes that is precisely.

William J. Brennan, Jr.:

Well that is what I just asked you.

Whether you were defending the judgment of the Court of Appeal and its opinion?

B. E. Bergesen, III:

Yes, but in the alternative we are also arguing that this Court could properly affirm the discovery orders of the District Court as being proper in and of themselves.

In which case then—

William J. Brennan, Jr.:

Then I should think we would have to set aside that sentence that Mr. Justice Powell, directed your attention to the Court of Appeals opinion?

B. E. Bergesen, III:

Oh yes—

Byron R. White:

If you would be then asking for a judgment that gives you more than you have obtained in the Court of Appeals?

B. E. Bergesen, III:

That is correct, but—

Byron R. White:

Without having cross appeal?

B. E. Bergesen, III:

Yes, but I think Justice White, we would be entitled to it on the doctrine that this Court can affirm the Court below on any ground —

Byron R. White:

You can affirm on any ground but you can’t extend the rights of the respondent that the Court of Appeals gave.

You can affirm what he got on any ground, but I don’t think you can—

B. E. Bergesen, III:

I see, well I stand corrected.

William H. Rehnquist:

But you can say, I suppose that the Ninth Circuit gave the State nothing?

They denied the petition for mandamus, and that you are entitled to argue in support of that denial on whatever basis you want.

B. E. Bergesen, III:

Precisely, technically we would be claiming that the affirmance here would be of the denial of the petition for mandamus.

Then the Court could put that affirmance on any ground it wanted, and since we fully briefed and argued in the Ninth Circuit, the proposition that the District Court orders were correct—

Byron R. White:

As I understand both you and your opponent, I thought as I understand you, when the case went back to the District Court, the District Court would be bound by the Ninth Circuit’s opinion to permit the State to claim a privilege?

B. E. Bergesen, III:

Yes, Justice White.

And if this Court affirms on that ground then they would.

If this Court were to affirm the denial of mandamus on the ground of the discovery orders were correct—

Byron R. White:

De novo, wouldn’t you have more if we affirmed here instead and said that the discovery orders of the District Court were right initially, the State has no privilege and can’t claim a privilege.

You would be getting more here than you got in the Court of Appeals.

B. E. Bergesen, III:

But we didn’t necessarily—

Byron R. White:

Well, wouldn’t you?

B. E. Bergesen, III:

Oh yes.

Byron R. White:

Alright, I don’t see that you would.

No you just didn’t take the Court of Appeals opinion, basically.

They denied mandamus but made a few observations—

What more could you ask, what more total victory could you have in the Court of Appeals than a denial of mandamus?

B. E. Bergesen, III:

Well, if it had been placed on the ground that the discovery —

Potter Stewart:

Whatever ground, that was a judgment of the Court?

B. E. Bergesen, III:

Then we would have without more the documents, Your Honor.

Byron R. White:

— it maybe dicta, then I misunderstood what you said.

You said that the District Court would be bound to permit the State to claim a privilege under the Court of Appeal’s opinion, is that right or no?

B. E. Bergesen, III:

Correct, yes Sir.

Harry A. Blackmun:

Mr. Bergesen, bringing me back to one detail.

A request had been made for a three-judge court, now normally the Chief Judge acts promptly.

You and your opponent know what a Judge Chambers has acted on this?

B. E. Bergesen, III:

No, I don’t know Justice Blackmun.

The last I know he had not?

Harry A. Blackmun:

He had not.

B. E. Bergesen, III:

Indeed there is a, we have argued to the Judge that that was not correctly certified and he is going to hear further.

This has been briefed and he is going to hear on November 20th, as to whether or not he ought to withdraw his certification.

Harry A. Blackmun:

Judge Weigel is going to hear it?

B. E. Bergesen, III:

Yes.

Harry A. Blackmun:

But you haven’t heard Chief Judge Chambers?

B. E. Bergesen, III:

Not yet.

Warren E. Burger:

Can he do anything until he hears from the Chief Judge of the Ninth Circuit?

Thurgood Marshall:

— once he asked for it what can he do after that?

I don’t think that the District Judge can do anything?

B. E. Bergesen, III:

Wouldn’t he have the power Justice Marshall, to withdraw his certification if he believes it was improvidently filed?

Thurgood Marshall:

Not where I read the statute, because as soon as he files it, Chief Justice moves on.

B. E. Bergesen, III:

Sometimes there is a long delay though, Your Honor, between the certification and the action.

And since it is jurisdictional, I would think he would be required to withdraw, it if he were convinced that it were filed in error.

Thurgood Marshall:

Have you ever been in a case that did that —

Harry A. Blackmun:

When you make that statement, is this routine in the Ninth Circuit a long delay, it isn’t in some other Circuits that I know about?

B. E. Bergesen, III:

I don’t know—

Harry A. Blackmun:

It is overnight.

B. E. Bergesen, III:

Justice Blackmun, I don’t think it is overnight in the Ninth Circuit, but I don’t know what generally is the case.

Thurgood Marshall:

Doesn’t statute say promptly?

Chief Judge are promptly?

B. E. Bergesen, III:

But you see, right.

Justice Marshall, our position is that the second amendment—

Thurgood Marshall:

We will all deliver at speed but promptly?

B. E. Bergesen, III:

When we filed our second amended complaint, it is our position that nothing in that complaint that was not in the original complaint required a three-judge court.

And that defendant seized upon the filing of a second amended complaint to raise the three-judge court issue, which has not merit in our view, and I will not speculate on motives but certainly the affect of that have been furthered delayed when we have continued to want to go to trial.

If it pleased the court, perhaps I could make some of my remarks which go to the merits of the case.

Warren E. Burger:

Yes you should.

And we have enlarged your time enough to cover this, but as was suggested before that you can use all of this.

B. E. Bergesen, III:

Thank you Mr. Chief Justice.

Perhaps the best way to go to the heart of this case is to consider two somewhat separate but absolutely inter related matters.

First there is the obligation of a Trial Judge to make and informed determination, in situations whereas here a government agency claims the qualified privilege for official information.

Warren E. Burger:

The privilege of the States?

What about the privilege of these individual 200 prisoners, not to have their files?

B. E. Bergesen, III:

Judge Wiegel’s protective order expressly requires us to get their consent before we look at their files.

Potter Stewart:

There are plenty of such—

B. E. Bergesen, III:

Among the class.

Potter Stewart:

Yes.

B. E. Bergesen, III:

But even though they are the class of plaintiffs we still have to get their written consent and have been doing that.

Warren E. Burger:

There 200 that are in the class but they are not all named plaintiffs, are they?

B. E. Bergesen, III:

Oh no, Your Honor.

Warren E. Burger:

They are plaintiffs.

B. E. Bergesen, III:

Yes, well they are all members of the plaintiff class.

Now here of course the defendants claim that the District Judge abdicated that obligation by refusing to look at these documents in camera.

But secondly, that the obligation of an agency resisting discovery to submit a proper claim and to make a specific showing in the District Court that those documents do in fact come in within the governmental privilege.

B. E. Bergesen, III:

Now our position can be stated quite simply.

Of course, the District Judge has the obligation to make an informed determination, but as a practical matter, he can make that informed determination only if the party resisting discovery, the government agency which has complete custody of the documents, makes the type of detailed showing which the cases require and which they did not even attempt in the District Court.

And I would like to note that the questions asked from the bench to my opponents this morning, what the files contain, what sort of documents are they, what sort of harm could come.

Those are precisely the things that the District Judge needed to know, precisely the facts that the resisting party was obligated to give him and exactly the detailed showing that the resisting party here refused to make.

In other words, the requirement that a resisting party make a strong showing, the documents are privileged, it is not a mere technical requirement—

William J. Brennan, Jr.:

This is an argument from the 26(b) is it?

B. E. Bergesen, III:

Premised on, I believe all of the discovery rules Justice Brennan, we put the burden on the resisting party.

William J. Brennan, Jr.:

Yes.

B. E. Bergesen, III:

To show that there is, for example a privilege, regardless of what device is used.

Moreover, we put these defendants on notice right at the beginning of this case, in our Rule 37 papers.

That they had to make a proper claim by the agency head that they had to make a specific showing, but this they never did throughout the entire litigation in the District Court.

For example, in the District Court, these defendants failed in the first instance to give the Judge any idea of the dimension of the problem, how many documents were involved.

Failed to submit a formal claim by the agency head, after personal considerations setting forth considered agency policy.

Failed to even identify the specific documents involved for the discovering party or for the court, failed to separate the documents into privileged to non-privileged portions and then correlate their claim of privilege to those portions.

Failed to spell out the specific harm, which would be caused if these documents were produced subject to the protective order, which Judge Weigel carefully drew, and failed to show why the protective orders recommended by the magistrate and adopted by the Judge would not be effective.

And indeed at one point, between the time when the magistrate recommended a protective order that would limit the inspection of the documents to anyone in our office.

The other side suggested that it ought to be changed to be limited to two counsel and two investigators and Judge Weigel entered an order, to one investigator excuse me, limiting it to two counsel and two investigators.

Therefore the obvious irony, as well as the fundamental legal deficiency of defendants claim here of judicial abdication is that it was their refusal to follow the law and to provide the District Judge with the information, he needed which created this situation about which they now complain.

Now, at this point, in the analysis the defendants would disagree.

They would say, they would point to their persistent request in the District Court that the Judge inspect these documents in camera, and their subsequent insistence in the Court of Appeals and in this Court that his refusal to do so constituted an abdication of his responsibility.

Now, to most people including some lawyers and perhaps even Judges, an in camera inspection sounds like a reasonable way to make an informed equitable determination of this type of dispute.

However, a moment’s reflection will show that there are at least three serious problems inherent in any in camera inspection.

Problems which the defendants and the District Court did not even acknowledge much less attempt to cure and they are first it is a serious problem obviously.

Not only on the trial court but on the appellate court to go through however many documents maybe involved.

Secondly, by all but eliminating the adversary process an in camera inspection bravely discovered the prejudice of the discovering party.

And thirdly, this is of crucial importance in our view, in a Rule 34 litigation situation unlike a Freedom of Information at case, the Judge cannot know at the discovery stage what documents or what portions of what documents are relevant to the plaintiffs’ case because he doesn’t know such crucial things as what information plaintiffs have in other depositions, who the witnesses are going to be, what they need to impeach the witnesses with and so forth.

So after you look at it for a while, you see that it is a very typical problem.

Now, it is for this reason that the lower federal courts, especially the DC Circuits which gets most of these request, in the case of Vaughn Vs. Rosen which we cite in our brief and others is beginning to require even in the FOIA Cases, a detailed breakdown of the documents separating them out.

Showing which portions are privileged and which are not, cross referencing the claims of the privileged to those portions allegedly non-disclosable in this situation and setting forth an evidentiary basis for this.

Now, clearly if this happens, this is necessary in order to decrease the burden on the Court and in order to give a maximumly fair chance to the discovering party.

B. E. Bergesen, III:

And what we ask is that if this Court reaches that issue, because after all, all the Court of Appeals said was its limited modest holding was that these defendants hadn’t made the proper showing in the District Court and indeed upon remand they still have that opportunity.

If this Court affirms on that ground, it may or may not discuss the requisites for an in camera inspection, and our request is that if this Court reaches that issue and discusses in its opinion that question, that it give concern to the very real problems of in camera inspection, not just the general ones experienced by any freedom of information act by the plaintiff, but the additional much more difficult naughty ones experienced by a litigant in a Rule 34 situation who is seeking these documents.

Thurgood Marshall:

— in camera could protect the privilege, doesn’t it?

B. E. Bergesen, III:

Well, the problem there Justice Marshall, is that the qualified governmental privileges requires the District Judge to balance, the harm that would come from disclosing these documents against the need for the plaintiffs of the documents in the litigation.

Thurgood Marshall:

Well, suppose the documents in inmate-A’s case points out that he informed on inmate-B, I think somebody needs to protect inmate-A?

B. E. Bergesen, III:

I wouldn’t disagree with that at all.

Thurgood Marshall:

Well, how could that be done under your way?

B. E. Bergesen, III:

Well, we would designate a file; they would look through the file and say here are these three documents.

Document number one, is privileged, and needs to be protected from disclosure because it has in it the name of an inmate who informed on another inmate.

Now if that were done, the plaintiffs, the discovery party might very well say we have no interest in that?

We don’t want to see that document?

Thurgood Marshall:

Well if you do want to see it, just see it?

B. E. Bergesen, III:

No, then they would have made a proper showing, they would have carried their burden and the District Judge either would uphold the privilege or look at the document in camera.

Thurgood Marshall:

Well I thought you said you did not want to look at it in camera, unless I misunderstood—

B. E. Bergesen, III:

No, our position Justice Marshall, is that of course there is a place for in camera inspection, but it is not for a resisting party to say it is all privileged, we demand in camera inspection and here are he documents.

We are not going to show you anymore showing, we are not going to give you anymore help, we are not going to give the discovering party any more of a chance to participate in the process.

That is what we are objecting to, the failure of the resisting party to make a proper showing, which would reduce the burden on the Court, and make the adversary process work.

Now, let me give you an example of what they might have done, because the other side makes much of it they have this morning, and they make much of it in their reply brief.

Their position is that with the central files, unlike other documents, they have no time to look through and make a submission to the Court, but this is the chronology of events that had to do with the central files and it is all in the record.

We in following the District Court’s order saying we have a right to see these inmates’ central files.

On September 27th, this is at appendix page 529, we designated 28 files we wanted to see, not until October 9th, did we actually show up to look at them.

During that time the other side made no motion to go into court to say here are the documents we think are privileged and why, to make any showing whatsoever, they simply withheld them from us.

They said, despite the Court’s order, you can’t look at them.

So, we had to go back to the District Court again, we filed a motion on October 21st, this is page 446 of the appendix, there were a whole series they filed two submissions in opposition, and at no time made the type of showing that they ought to have.

Indeed as late as November 20th they filed a counter motion, this is at appendix at 590, trying to get the Judge once again to reconsider and say that these documents were confidential.

And now this is almost two months after we first designated the files and still and all this time they haven’t gone into the District Court and made the kind of submission, and made the kind of showing, even with respect to these inmates’ central files that they say everything moved so rapidly on.

And parenthetically, we wouldn’t object to a procedure below following the Ninth Circuit’s opinion, whereby even with respect to the central files.

We will designate them, there is a time interlude, they can come in and make the proper showing.

The one thing we won’t vie and the one thing the Ninth Circuit wouldn’t vie is just this blanket, conclusary claim of privilege with no showing that helps the court, and now showing that makes the adversary process work and permits an informed decision to be made by the Judge.

With respect to the qualified privilege for official information as to whether the discovering parties need for the documents in the litigation outweighs the harm that would come from their disclosure.

B. E. Bergesen, III:

Now, I am so unaccustomed, Your Honors, to terminating my argument before the time is up.

Byron R. White:

Is the question of relevance open here though?

B. E. Bergesen, III:

I do not believe, I have to look at the cert petition, I guess, they certainly they haven’t argued with any—

Byron R. White:

The Court of Appeals must have held that—

B. E. Bergesen, III:

The magistrate, the District Judge and the Court of Appeals, each one of them after a hearing held these documents to be relevant to the subject matter of this litigation.

Byron R. White:

Why did you want it up here?

Is there one easy answer or there are lots of them?

B. E. Bergesen, III:

There are lots and lots of them and I have even written them down—

Byron R. White:

Is it to pass upon the confidence of the state officials?

B. E. Bergesen, III:

It is not to pass upon, it is not to pass upon their confidence, Your Honor, so much as — what you have is a fair unique situation with the parole board.

Byron R. White:

Is it to pass upon so that the Court could make some judgment in how they have performed their duties in the past?

B. E. Bergesen, III:

Not so much as to determine what Due Process safeguard must surround these hearings.

In this regard, let me invite Your Honors attention to a very recent article by a—

Byron R. White:

(Inaudible)

B. E. Bergesen, III:

Which one?

There are three sets, Your Honor?

(Inaudible)

B. E. Bergesen, III:

Yes, the personnel files, the extreme indeed the unique power and discretion given to a parole board is usually premised upon the fact that these individuals have tremendous expertise.

Not possessed by you and me, and therefore Due Process safeguards really would be out of place in these parole hearings.

Warren E. Burger:

How about the Supreme Court of California, would you think you were entitled to the biographical background of all the members in order to see whether they were qualified to make the more important judgments that they make?

B. E. Bergesen, III:

No, Your Honor.

And we distinguished in our brief the many-many distinctions between federal courts and federal judges bound by rules, they do not make.

Bound by rules of evidence, required to proceed in open court on the record with all parties represented by counsel and subject to judicial review.

Byron R. White:

What did you want these records for?

B. E. Bergesen, III:

We wanted to show two things.

First of all as Judge Finley suggests in a recent law review article, there may well be, or there should be a connection between the impartiality of the hearing officer and the Due Process safeguards that are required.

We intend to show through these files among other things, that many of these hearing representatives and members are former correctional officials, are former police officials who even arrested some of the –Mr. Chief Justice may I leave the record for just a minute, I think my opposing counsel did that.

Warren E. Burger:

Well, I cannot tell until I know what you are going to go out of the record for?

B. E. Bergesen, III:

Well—

Warren E. Burger:

Well entirely you are confined to the record here.

B. E. Bergesen, III:

Well let me make a hypothetical, if we could show Justice White, that a parole board member as a Los Angeles Police Captain, arrested an inmate, was punched in the nose by an inmate, later went on the adult authority and sat on that inmate’s case and told him, you ain’t ever getting out of here as long as I am on the board.

I think that this Court and any Court would agree that maybe certain Due Process safeguards like perhaps a right to disqualify for bias, which we asked in our complaint would be required.

Now how do we make that kind of showing?

Byron R. White:

(Inaudible) Your argument would be that you might show his personal file, is that the possibility of bias, (Inaudible)

B. E. Bergesen, III:

Precisely, and our second amended complaint also alleges that the indeterminate sentence is unconstitutional in part because we claim that the assumptions always made about parole board members that they can predict.

That based on the materials before them or the prison programs that the prisoners take part in, they can predict who will recidivate and who can not.

We are going to prove that they can not in trial, or we are going to try.

And we believe that we can show that the expertise which is often said to underlie —

Byron R. White:

(Inaudible)

B. E. Bergesen, III:

We might have expert witnesses—

Byron R. White:

(Inaudible)

B. E. Bergesen, III:

I am not sure I followed you Justice White, on the sampling—

Byron R. White:

(Inaudible)

B. E. Bergesen, III:

In part the file may well represent.

But let us take an example of a parole board member who writes a denial based upon X, Y or Z, and based upon this he says I predict that there will be recidivism.

And let us say that our expert witness comes on, our psychiatric witness and says that is absolutely invalid.

You cannot predict by X, Y or Z recidivism or dangerousness.

If you did enough of that sort of thing, you see our problem below Justice White; we have purposely structured this case so as that we would have to make a detailed, painstaking, evidentiary showing that among other things is the assumptions popularly and consistently held by many people including the judiciary about parole boards are in fact untrue, and the only way we can do that is by making a painstaking day-by-day, evidentiary showing in the teeth of a lot of popular wisdom, which in our opinion is absolutely untrue which invalidates the parole board an indeterminate sentence in California.

Warren E. Burger:

Mr. Ferguson, if you were the chairman of a committee or sub-committee of the California legislature, in outlining a program of action of how you are going to proceed in order to persuade the legislature to abandon the adult authority system, I would think the argument you have made would be entirely a valid one.

But you are asking a Court to undertake the, to evaluate the efficacy of the California adult authority system for sentencing offenders, that is the what it amounts to isn’t it?

B. E. Bergesen, III:

No, Mr. Chief Justice, I would take issue with the word efficacy.

Our intent is to show that the procedures are so defective and so lacking in evidentiary integrity that they must be surrounded by greater due process safeguards than are presently afforded.

That the XIV Amendment requires that, because as this Court said time and again what Due Process is required in any situation depends on the situation, and we want to make an evidentiary showing to show what this situation really is as opposed to what is popularly assumed to be.

Thank you.

Warren E. Burger:

Very well, you have anything further Mr. Mayer?

We can allow you about five minutes more.

Karl S. Mayer:

Thank you, Your Honor.

I would be very brief.

Counsel spoke of the necessity under the District Court’s orders for there to be consent of the inmates whose files are to be inspected and that is true.

However, as of indicated the files contained documents persons other than that inmate.

Karl S. Mayer:

They contain crime partner information, they contain information from informants against the inmates whose file is to be inspected.

That inmate’s consent is irrelevant as to those other documents; he cannot consent to the disclosure of documents which he has not generated.

Now, the counsel has stated here that we would have no objection, if in the District Court there was some showing made of the confidentiality of the contents of the inmate’s files, and if some particular document were withheld and to be shown to the Court on upon a proper showing, we would have no objection to that.

That is precisely what we did, that is precisely what precipitated this attorney’s motion for enforcement, clarification and sanctions.

That is precisely what precipitated, Judge Weigel threatening me in open court with contempt if I tried it again, and that is precisely what precipitated the strident language of the District Court in the December 3 order.

This was done and it was rejected.

It was rejected by the Ninth Circuit in its denial of mandamus in that separate mandamus proceeding.

Now if we go back to the District Court as the law presently stands, we are in the same relatively helpless position.

The opinion in Kerr is not helpful, it is a denial of mandamus and nothing more, there is some dicta in the opinion but the dicta adds nothing to the state of the laws at that time, these events began.

I feel with respect to, particularly the inmate documents, and with respect to the contents of the personnel files, more must be required of the District Court.

The background and information to which counsel has expressed an interest has been furnished in abundance to plaintiffs, the complete work backgrounds, the complete educational backgrounds were furnished in response to interrogatories with statements and documents.

Each member of the adult authority has been deposed at length by plaintiffs, the deposition is focused on two things; their backgrounds and their attitudes and the procedures each individual follows at parole consideration hearings.

How they get into the file, what they look at, how they weigh this, how they weigh that, they have this information to a fairly well.

And there is no excuse to have demanded everything in every personnel file, everything in every inmate file and so on.

We submit that the District Court has not acted reasonably with respect to these documents, again the confidential nature of which is conceded and has been continuously below.

I will submit the matters, thank you very much, Your Honor.

Warren E. Burger:

Thank you gentleman.

The case is submitted.