Black v. Sheraton Corp. of America

47 F.R.D. 263, 1969 U.S. Dist. LEXIS 13827
CourtDistrict Court, District of Columbia
DecidedJuly 25, 1969
DocketCiv. A. No. 440-67
StatusPublished
Cited by29 cases

This text of 47 F.R.D. 263 (Black v. Sheraton Corp. of America) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. Sheraton Corp. of America, 47 F.R.D. 263, 1969 U.S. Dist. LEXIS 13827 (D.D.C. 1969).

Opinion

OPINION

SIRICA, District Judge.

The subject matter of this litigation is the electronic surveillance by the United States of a suite of rooms in the Sheraton Carlton Hotel in Washington, D. C. Plaintiff is suing the United States, Sheraton Corporation of America, and the Washington Sheraton Corporation for trespass and invasion of privacy which allegedly resulted from the eavesdropping on conversations in the suite.

Plaintiff served a notice of deposition1 and commenced taking the deposition of certain agents of the United States. During the course of his deposition, Edward Pennypacker, an agent of the Federal Bureau of Investigation, refused to answer certain questions on the ground that they would tend to disclose the identity of a confidential informer or informers of the United States. The questions posed by the plaintiff were whether the FBI contacted anyone at the Sheraton Carlton Hotel in connection with its alleged unlawful surveillance of plaintiff’s suite therein and, if so, who that person was.

Plaintiff has moved this Court to compel an answer to the above questions pursuant to Rule 37(a) of the Federal Rules of Civil Procedure.

Plaintiff has also moved the Court under Rule 34 of the Federal Rules of Civil Procedure to order the United States to produce for inspection and copying by the plaintiff certain documents alleged to be relevant to plaintiff’s cause of action.

Defendant United States has moved for a protective order pursuant to the provisions of Rule 30(b) limiting the scope of the deposition of Edward Pennypacker and any other agent of the Federal Bureau x>f Investigation during the course of this action. Defendant United States also moves under Rules 34 and 30(b) for an order limiting the scope of the areas concerning which records must be produced in this action.

This Court has held an extensive hearing on these matters and has considered memoranda in support of and in opposition to each of the motions. The Court also conducted an in camera inspection of certain documents presented to it by the United States concerning the role of the informer or informers in the surveillance. See Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 73, 351 F.2d 762, 770 (1965).

[265]*265I will discuss seriatim each of the motions before the Court.

I. MOTION TO COMPEL AN ANSWER TO QUESTIONS

The threshold question in deciding whether or not the government should be compelled to disclose the identity of an informer, concerns the definition of an informer. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the leading case in the informer privilege area presented the following definition of the privilege: “* * * [T]he Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” 353 U.S. at 59, 77 S.Ct. at 627.

The actual scope of factual situations in which the privilege has been invoked, however, is significantly broader. It has been held to apply not only to persons who supply information to the authorities but also to those who cooperate with or assist a law enforcement agency. In Roviaro, for instance, the informer was the transferee of the narcotics. He was the sole participant in the transaction other than the accused. Yet there was no question about his status as an informer.

In Howard v. Allgood, 272 F.Supp. 381 (E.D.La.1967), the informer knew nothing of the crimes that had been committed and had no knowledge of the reason for the investigation. His sole role in the affair was to let the police know whether or not the petitioner was at home before they attempted to confront him. The Court held that while the informer was not an “informer” insofar as the crime or any element thereof was concerned, it was not error for the government to refuse to disclose his identity. The district judge thus recognized the principle that citizens who assist the police on a confidential basis should remain anonymous.

In Wilson v. United States, 59 F.2d 390 (3d Cir. 1932), a citizen furnished a Prohibition Act officer with a key to premises which contained illegal liquor. Although holding that disclosure was proper since the identity of the informer was necessary to determine the defendant’s guilt or innocence, the court naturally classified the person who helped the officer as an informer. The informer’s privilege concept, therefore, must be viewed from a broader perspective to include more than mere “information-givers.” Courts have consistently, though often tacitly done this in the past. See Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958); United States v. Conforti, 200 F.2d 365 (7th Cir. 1953).

Rather than to limit the class to whom the privilege is generally applicable, the better approach is to weigh the nature of the informer’s role in determining whether disclosure is appropriate under the standards established by the Roviaro decision. The public interest extends beyond merely encouraging members of the public to convey information to the authorities and includes rendering whatever assistance is necessary to achieve effective law enforcement. This duty goes back to more primitive days in our history when citizens were required to participate in the establishment of a posse eomitatus. See In re Quarles, 158 U.S. 532, 535-536, 15 S.Ct. 959, 39 L.Ed. 1080 (1894).

Applying the above to the facts of this case, it is my view that the person or persons who assisted the government in the eavesdropping of plaintiff’s suite were informers within the accepted legal meaning of that word.

Having established that they were informers, it is incumbent upon the Court to determine whether their identity should remain undisclosed.

There can be no disputing the fact that the aid and assistance of citizens and corporations are necessary for the [266]*266effective administration of justice.2 It is the primary purpose of the informer’s privilege to facilitate this private cooperation in law enforcement by encouraging informers to provide pertinent information to the government without fear of public disclosure, retaliation or social disfavor.

Originally, the informer’s privilege was a broadly conceived evidentiary rule insulating persons who assisted the authorities from disclosure. See In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1894); Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158 (1884).

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Bluebook (online)
47 F.R.D. 263, 1969 U.S. Dist. LEXIS 13827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-sheraton-corp-of-america-dcd-1969.