United States Court of Appeals For the First Circuit
No. 12-1236
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE,
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
TRUSTEES OF BOSTON COLLEGE,
Movant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Before Torruella, Boudin* and Thompson, Circuit Judges.
Jeffrey Swope, with whom Nicholas A. Soivilien and Edwards Wildman Palmer LLP, was on brief for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.
May 31, 2013
* Judge Boudin heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). TORRUELLA, Circuit Judge. As part of its academic
mission, Boston College ("BC"), an institution of higher learning,
undertook research into the armed conflict surrounding the
independence movement of Northern Ireland during the second half of
the Twentieth Century. In the course of said research, which it
labeled the "Belfast Project" ("Project"), BC compiled extensive
oral histories in the form of personal interviews and testimonies
from formerly active participants in that volatile period,
including from past members of the Irish Republican Army ("IRA")
and its various related organizations. Said materials are
deposited in a secure section of BC's Burns Library, where they are
accessible only for academic research and study, subject to strict
confidentiality agreements entered into between BC and the
interviewees.
On August 11, 2011, pursuant to Article 5 of the Treaty
Between the Government of the United States and the Government of
the Kingdom of Great Britain and Northern Ireland on Mutual Legal
Assistance on Criminal Matters, U.S.-U.K., Dec. 2, 1996, S. Treaty
Doc. No. 104-2 ("US-UK MLAT")1 and 18 U.S.C. § 3512, a commissioner
1 Article 5 of the US-UK MLAT states:
1. As empowered by this Treaty or by national law, or in accordance with its national practice, the Requested Party shall take whatever steps it deems necessary to give effect to requests received from the Requesting Party. The courts of the Requested Party shall have authority to issue subpoenas, search warrants, or other orders necessary to execute the requests.
-2- appointed to represent Petitioner-Appellee the United States
("Petitioner") issued, and thereafter sought enforcement of, a
subpoena (the "August 2011 subpoena") in the United States District
Court for the District of Massachusetts. Said subpoena is aimed at
compelling the production by BC of the recordings and/or
transcripts of all interviews collected by the Project's
researchers, "containing information about the abduction or death
of Mrs. Jean McConville," an apparent casualty of the interstitial
conflict in Northern Ireland.
BC filed a motion to quash this subpoena, seeking to
preserve the confidentiality of its research. The district court
denied BC's request, but agreed to perform an in camera review of
the documents sought by the Petitioner. Following said review, the
Court ordered that 85 interviews in BC's possession be turned over
to the Petitioner for eventual transfer to the UK authorities.
BC now appeals the district court's order to produce the
interviews. Relying on In re Special Proceedings, 373 F.3d 37, 45
(1st Cir. 2004), it claims that "'heightened sensitivity' to First
Amendment concerns" applies and that materials in the interviews
"may not be compelled unless directly relevant to a" bona fide
investigation.
2. When execution of the request requires judicial or administrative action, the request shall be presented to the appropriate authority by the persons appointed by the Central Authority of the Requested Party.
-3- After a detailed review of the materials in question, we
find that the district court abused its discretion in ordering the
production of several of the interviews which, after an in detail
reading of the same, do not contain any information relevant to the
August 2011 subpoena. We thus affirm in part and vacate in part
the district court's order.
I. Background
In 2012, we issued a decision in two consolidated appeals
relating to the instant appeal. See In re Dolours Price, 685 F.3d
1 (1st Cir. 2012), cert. denied sub. nom. Moloney v. United States,
2013 U.S. LEXIS 2757 (U.S., Apr.15, 2013). Those appeals came
about after the district court rejected the efforts of two BC
researchers closely related to the Project, Ed Moloney and Anthony
McIntyre, to intervene in the subpoena enforcement proceedings. We
shall only recount the facts and holding of that case as is
necessary to frame and decide the present appeal.
As is apparent from the record, the origins of these
proceedings lay in the UK's request for Petitioner US's assistance
in investigating the 1974 disappearance of Mrs. McConville from her
home in Belfast, Northern Ireland. The UK seeks to scrutinize the
Project's materials for information aiding that investigation, and
thus requested the United States' assistance in obtaining them. In
March 31, 2011, as provided in the US-UK MLAT and 18 U.S.C.
-4- § 3512,2 the district court appointed a commissioner to pursue the
UK's request.
Shortly thereafter, in May 2011, the commissioner served
his first set of subpoenas on BC seeking the production of the
interviews of two individuals who had taken part in the Project,
Brendan Hughes (who by then had passed away) ("Hughes") and Dolours
Price. BC filed a motion to quash those subpoenas. While that
motion was pending, the commissioner served BC with another
subpoena in August 2011 (the subject of the present appeal).
Instead of being directed at the production of specifically named
interviewees, the August 2011 subpoenas sought "[t]he original
audio and video recordings" and "[a]ny and all written transcripts,
interview summaries, and interview indices" "of any and all
interviews containing information about the abduction or death of
Mrs. Jean McConville." BC moved to quash this subpoena as well.
On December 16, 2011, the district court denied BC's
requests to quash both sets of subpoenas. See United States v.
Trustees of Boston College, 831 F. Supp. 2d 435 (D. Mass. 2011).
It did, however, grant BC's alternative request to conduct an in
camera review. On December 27, 2011, after reviewing the Dolours
Price interviews, the district court ordered their production. BC
2 18 U.S.C. § 3512 establishes "a streamlined process . . . for executing requests from foreign governments related to the prosecution of criminal offenses." In re Dolours Price, 685 F.3d at 11, n.13.
-5- has since handed over both the Dolours Price and Hughes materials
to the commissioner. The district court also conducted an in
camera review of the August 2011 subpoenaed materials "to see
whether, fairly read, they f[e]ll within the scope of the
subpoena." It declined to consider whether a materiality or
relevance analysis was necessary and found that the judicial role
was circumscribed to "checking to see whether the data produced
conforms to the subpoena."
On January 27, 2012, the district court issued a Findings
and Order in which it summarily explained how it conducted its in
camera review. The Order included a Sealed Appendix listing the
specific materials to be produced. The list identified the
materials according to BC's coding system, using random letters and
numbers to identify the interviewee and the interview number to be
released. It neither explained why it ordered particular
interviews to be released, nor why it ordered the production of all
interviews by a given interviewee. In some cases it ordered the
whole series of interviews conducted with a particular interviewee
to be produced while in other cases only one interview from the
series was ordered released. Before us now is BC's appeal from
that order.
While the present appeal was pending, BC filed a
Suggestion of Death pursuant to Fed. R. App. P. 43(a)(1), informing
this court that, "[a]ccording to news reports, Dolours Price was
-6- found dead on January 23, 2013, at her home in Malahide, Northern
Ireland." In asking the court to take notice of her death, BC also
requested that we vacate the district court's order to produce the
August 2011 subpoenaed materials, dismissing this appeal as moot.
Its main argument was that since the subject of the case, as
identified in its caption, was Dolours Price, her death meant that
criminal matters in relation to her could not continue.
The government opposed BC's request. It argued that the
subpoenas requested materials relating to the abduction and death
of McConville, "which very well might include interviews
implicating persons other than Price," and that the parties and the
district court understood that the subpoenas sought "documents
relevant to the investigation of McConville's death, not merely
those that might implicate Price." BC rejected this argument,
differentiating between the subject of the proceedings as
identified in the caption (i.e., Dolours Price) and the scope of
the materials sought by the subpoenas (i.e., information about the
McConville abduction and death).3
We will first address BC's mootness argument.
3 The United States captioned the special proceeding as: "In re: Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price." BC also made an argument under Article 1 of the US-UK MLAT, but later decided not to contest the United States' take on the issue. We, of course, pass no judgment upon the merits of the abandoned argument.
-7- II. Analysis
A. The Impact of Dolours Price's Death
It is not surprising that BC attributes great
significance to the death of Dolours Price given that she evidently
was targeted as part of the investigation into Mrs. McConville's
apparent abduction, murder and disappearance. Dolours Price's
death, however, does not have any decisive effect upon these
proceedings because their subject matter is not, and has never
been, solely Dolours Price's individual prosecution. Rather, these
proceedings are a part of a broad investigation into the death of
Mrs. McConville. This has been clear to the district court since
the inception of the case, and to BC, at least since the August
2011 subpoena was issued. The materials filed under seal by the
United States in the district court verify that these proceedings
are based on a broad investigation, and not solely on an
investigation against Dolours Price's actions. Thus, her death
does not in any manner impinge or prevent the continuation of the
broader investigation into Mrs. McConville's death.
BC's arguments regarding mootness seem to be partially
based on the fact that the caption of the case indicates that the
subject of the proceedings is a criminal investigation against
Dolours Price. This argument is not well-founded. It is a settled
principle that a defective caption (or even its absence) presents
an issue of form that is not deemed fatal to an otherwise valid
-8- action. See 5A Wright and Miller, Fed. Prac. and Proc.: Civ.
§ 1321 at 388 (3d ed.) (2008). Stated otherwise, it is a matter of
form without substance. In the past, in order to determine the
capacity in which a defendant was sued in a civil action, this
court has looked beyond a defective caption and instead examined
the substance of the legal claim and the conduct of the parties.
Indianapolis Life Ins. Co. v. Herman, 516 F.3d 5 (1st Cir. 2008)
(affirming personal liability even though the caption in district
court and final judgment referred to defendant only in her capacity
as trustee). While the defect in the instant case involves an
inaccurate caption rather than a failure to properly name a party,
an analysis of the substance of these proceedings demonstrates that
their subject is not the criminal prosecution of Dolours Price.
"This approach eschews mechanical reliance on the form of the
caption . . . and is consistent with the practical approach to
construction of pleadings and orders taken by the Federal Rules."
Id. at 10. It is therefore of no consequence that the caption
names her, a person whose involvement in the McConville abduction
and death was apparently known, instead of describing the subject
matter of the investigation explicitly.
B. The Arguments on Appeal
Citing Branzburg v. Hayes, 408 U.S. 665 (1972), this
court in In re Dolours Price, inter alia, rejected Moloney and
McIntyre's attempt to halt the production of Project materials
-9- based on allegations of First Amendment academic research
privilege.4 In particular, we held that "the fact that disclosure
of the materials sought by a subpoena in criminal proceedings would
result in the breaking of a promise of confidentiality by reporters
[or researchers] is not by itself a legally cognizable First
Amendment or common law injury." In re Dolours Price, 685 F.3d at
16 (citing Branzburg, 408 U.S. at 682, 690-91, 701). In expounding
that Branzburg fully applied, this court deemed controlling the
strong public and governmental interests of the United States and
the UK, respectively and jointly, in not impeding criminal
investigations. See id. at 18. This court further recognized that
the law enforcement interest in this context is stronger than that
in Branzburg given that "[t]wo branches of the federal government,
the Executive and the Senate, have expressly decided to assume
the[] treaty obligations." Id.
In its opening brief here, which was filed before In re
Dolours Price was decided, BC explicitly stated that it did not
purport to argue that there is an absolute First Amendment right
that protects all academic research from compelled discovery.
4 In In re Dolours Price, we rejected Moloney and McIntyre's attempt to halt the production of the materials by arguing that the terms of the US-UK MLAT had not been followed. We also denied the validity of their allegations to the effect that a cause of action existed under the Administrative Procedure Act, a contention expressly prohibited by the treaty, which denies private rights of action arising from the violation of its terms. See US-UK MLAT, Art. 1, ¶ 3.
-10- Instead, it posited that our precedent requires that special
protection be given to the Project's materials.
In its reply brief, which was filed after In re Dolours
Price was issued, BC explicitly acknowledges that "many of the
arguments it advanced in its opening brief were not accepted by
this court in [In re Dolours Price]," but insists that special
protection, in the form of "heightened sensitivity," is warranted.
Further, it maintains that our precedent mandating said treatment,
particularly In re: Special Proceedings, 373 F.3d 37 (1st Cir.
2004), has not been overturned and governs the outcome of this
appeal. Relevant to this inquiry, BC further urges this court to
decide whether a district court has discretion to quash a subpoena
issued pursuant to the US-UK MLAT, a question we specifically
declined to address in In re Dolours Price. See In re Dolours
Price, 685 F.3d at 14-15. BC thus requests that we now pass on
this issue and rule that such discretion exists; that a heightened
sensitivity standard should be applied here because of the
confidential nature of the Project; and that only materials that
are directly responsive to the subpoenas should be released. BC
specifically argues that the district court did not apply the
"directly relevant" inquiry properly, even though it purported to
follow In re Special Proceedings, and that it ordered the
production of materials that were not responsive to the August 2011
subpoena at all.
-11- The government, for its part, contends that courts do not
have discretion under the US-UK MLAT to review for relevance
materials subject to a subpoena. It states that only the Attorney
General, not the courts, has discretion to decline, delay or narrow
a request under the treaty. To the extent courts retain
discretion, it says in the alternative, they are limited to
circumstances where enforcement would offend constitutional
guarantees or federally-recognized privileges. The government,
however, despite the fact that it denies the district court had
discretion to perform the in camera review, does not wish to upset
the district court's order. Rather, it proposes that an ordinary
relevance standard be applied in this case rather than a direct
relevance standard, and urges us to find that the district court's
review properly met that standard.
It is clear that BC has abandoned most of the arguments
it made in its opening brief due to our decision in In re Dolours
Price. What is left of those arguments requires us to determine
whether the district court had discretion to rule upon the motion
to quash and to perform an in camera review of the subpoenaed
materials as part of its deliberation process. If we find that no
discretion exists, we need go no further. If, however, we conclude
that such discretion exists, we must then decide under which
standard the district court should have examined the materials in
-12- its exercise of discretion: direct relevance or ordinary relevance.
We address first whether discretion exists at all.
C. Federal Court Discretion to Quash US-UK MLAT-Issued Subpoenas
As stated above, in In re Dolours Price, we explicitly
declined to pass judgment upon the question of federal court
discretion to review motions to quash subpoenas under the US-UK
MLAT.5 We now address this question directly.
Pursuant to Article 3 of the US-UK MLAT, it is the
Attorney General who decides whether to accede to a request from
the UK, to narrow compliance to a certain aspect of said request or
to decline to cooperate altogether. See Art. 3, US-UK MLAT. The
government, however, erroneously concludes that the Attorney
General's exclusive prerogative in initiating proceedings
translates into a general bar on judicial oversight of the subpoena
enforcement process.
The treaty is silent as to the role of federal courts in
the process of enforcing subpoenas issued in furtherance of a
request by the UK. This silence, of course, does not mean that the
actions taken by the Executive once the Attorney General decides to
5 On that occasion, the government assumed arguendo that the discretion to quash existed and that the court acted properly within it. See In re Dolours Price, 685 F.3d at 14-15. This is in sharp contrast to what the government had argued unsuccessfully in another case involving an MLAT where it denied such discretion existed. See In re 840 140th Ave. NE, 634 F.3d 557, 563 (9th Cir. 2011). In the appeal before us now, the government has again changed its position.
-13- comply with a request are totally insulated and beyond the purview
of oversight by the courts. In fact, courts play a prominent role
in aiding the Executive's administration of its obligations under
the treaty. See 18 U.S.C. § 3512.6 In most cases, as here, the
Attorney General will request that a federal judge issue an order
appointing a commissioner to carry out specific actions in
furtherance of the request, and will ask a court to enforce
subpoenas when the recipients refuse to comply. See § 3512(a)(2)
and (b). Hence, even if a court is not free to decline, delay or
narrow a request by the UK because that power to initiate the
process lies with the Attorney General under the treaty, federal
courts play an indispensable role in the process of executing a
request. Nevertheless, Section 3512, does not, on its face,
6 18 U.S.C. § 3512(a)(1) states:
Upon application, duly authorized by an appropriate official of the Department of Justice, of an attorney for the Government, a Federal judge may issue such orders as may be necessary to execute a request from a foreign authority for assistance in the investigation or prosecution of criminal offenses, or in proceedings related to the prosecution of criminal offenses, including proceedings regarding forfeiture, sentencing, and restitution.
Although not decisive in the present appeal, we note that in enacting this provision Congress used the term "may," which usually denotes a modicum of discretion, rather than the mandatory "shall. See López v. Davis, 53 U.S. 230, 240 (1997)("Congress' use of the word 'may,' rather than 'shall,' has no significance" if interpreted as an authorization and a command, rather than as a grant of discretion.").
-14- provide us with an answer to the inquiry at hand: whether federal
courts have discretion to quash a subpoena in this context.
In the context of the issues raised by this appeal,
judicial enforcement of the August 2011 subpoena implicates
structural principles of the separation of powers which are
"concerned with the allocation of official power among the three
co-equal branches of our Government." Clinton v. Jones, 520 U.S.
681, 699 (1997); see also Boumediene v. Bush, 553 U.S. 723, 742
(2008) ("The Framers' inherent distrust of governmental power was
the driving force behind the constitutional plan that allocated
powers among three independent branches. This design serves not
only to make Government accountable but also to secure individual
liberty."). Of course, it goes without saying that the separation
of powers does not forbid cooperation and interdependence between
branches. See Mistretta v. United States, 488 U.S. 361, 381
(1989). But there are certain core boundaries that need to be
respected and observed. See In re 840 140th Ave. NE, 634 F.3d at
571-72 (9th Cir. 2011).
In In re 840 140th Ave. NE, a case that concerned the
nature and scope of judicial review in the context of the US-Russia
MLAT, which we cited in In re Dolours Price with approval, the
Ninth Circuit observed that the "enforcement of a subpoena is an
exercise of judicial power," and that "[t]reaties, like statutes,
are subject to constitutional limits, including the separation of
-15- powers." Id. at 571-72. The Ninth Circuit further ruled that
prohibiting judicial discretion to quash leads to the "the
inescapable and unacceptable conclusion that the executive branch
[] would exercise judicial power" and that "the government's
position suggests that by ratifying an MLAT, the legislative branch
could compel the judicial branch to reach a particular result --
issuing orders compelling production and denying motions for
protective orders -- in particular cases, notwithstanding any
concerns, such as violations of individual rights, that a federal
court may have." Id. at 572 (emphasis added).
In deciding the role of federal courts in enforcing
subpoenas issued pursuant to the treaty, we must ensure that our
decision does not offend basic separation of powers principles by
allowing (1) "encroachment or aggrandizement of one branch at the
expense of the other," Jones, 520 U.S. at 699 (quoting Buckley v.
Valeo, 424 U.S. 1, 122 (1976)); or (2) "a branch . . . [to] impair
another in the performance of its constitutional duties," Jones,
520 U.S. at 701 (quoting Loving v. United States, 517 U.S. 748, 757
(1996)). If we were to accede to the government's position and
hold that courts must always enforce a commissioner's subpoenas, we
would be (1) allowing the executive branch to virtually exercise
judicial powers by issuing subpoenas that are automatically
enforced by the courts; and (2) impairing our powers by acceding to
act as rubber stamps for commissioners appointed pursuant to the
-16- treaty. Such subservience is constitutionally prohibited and,
ergo, we must forcefully conclude that preserving the judicial
power to supervise the enforcement of subpoenas in the context of
the present case, guarantees the preservation of a balance of
powers.
Precisely because we recognize the importance here of
"the governmental and public interest in not impeding criminal
investigations," we must necessarily recognize the importance of
judicially checking and balancing these interests in order to
control excesses and preserve the balance in the symbiotic
relationship between the commissioner conducting the investigation
on behalf of the UK, and the courts before which the commissioner
seeks the enforcement of the subpoenas. In re Dolours Price, 685
F.3d at 18.
In substance, we rule that the enforcement of subpoenas
is an inherent judicial function which, by virtue of the doctrine
of separation of powers, cannot be constitutionally divested from
the courts of the United States. Nothing in the text of the US-UK
MLAT, or its legislative history, has been cited by the government
to lead us to conclude that the courts of the United States have
been divested of an inherent judicial role that is basic to our
function as judges. Cf. Weinberger v. Romero-Barceló, 456 U.S.
305, 320 (1982).
-17- D. The applicable standard of relevancy
Having unequivocally established that courts have
inherent judicial power over the enforcement of subpoenas issued in
the context of a proceeding pursuant to the US-UK MLAT, we must
decide whether, when dealing with a motion to quash the release of
academic research materials, courts must review under an ordinary
relevance or a direct relevance standard.
BC contends that a direct relevance standard should apply
because in In re Special Proceedings we "held that 'heightened
sensitivity' is required in reviewing confidential academic
research materials to determine that they are 'directly relevant.'"
We reject BC's argument because In re Special Proceedings applies
only to cases not already covered by Branzburg.
In In re Special Proceedings, we emphasized that our
three leading cases regarding confidential sources "require
'heightened sensitivity' to First Amendment concerns and invite a
'balancing' of considerations (at least in situations distinct from
Branzburg)." 373 F.3d at 45 (emphasis added) (citing Cusumano v.
Microsoft Corp., 162 F.3d 708 (1st Cir. 1998); United States v.
LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988); Bruno & Stillman,
Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980)). We
thus stated that, "[i]n substance, these cases suggest that[, 'at
least in situations distinct from Branzburg,'] the disclosure of a
reporter's confidential sources may not be compelled unless
-18- directly relevant to a nonfrivolous claim or inquiry undertaken in
good faith . . . ." Id.
In In re Dolours Price we stated, however, that the
controversy at hand is "closer to Branzburg itself, buttressed by
[Univ. of Pa. v. EEOC, 493 U.S. 182 (1990)], than any of our
circuit precedent" and that "[t]he Branzburg analysis, especially
as to the strength of the governmental and public interest in not
impeding criminal investigations, guides our outcome." In re
Dolours Price, 685 F.3d at 18.
The result of this appeal is thus dictated by binding
Supreme Court and circuit precedent, namely, Branzburg and In re
Dolours Price. BC has not requested that we reconsider our recent
decision and we see no reason to do so, nor could we as a panel.
See United States v. Rodríguez, 527 F.3d 221, 224 (1st Cir. 2008)
("As a general rule, newly constituted panels in a multi-panel
circuit are bound by prior panel decisions closely on point.").
Because this case is controlled by Branzburg, we need not follow
our line of cases which "[i]n substance . . . suggest that the
disclosure of . . . confidential sources may not be compelled
unless directly relevant" to the investigation. In re Special
Proceedings, 373 F.3d at 45.
Instead, we will follow Branzburg in ordering that
materials relevant to the August 2011 subpoena be produced under an
ordinary standard of relevance. We emphasize that Branzburg held
-19- that the public need for information relevant to a bona fide
criminal investigation precludes the recognition of a First
Amendment privilege not available to the ordinary citizen. See
Branzburg, 408 U.S. at 685 ("[N]ewsmen are not exempt from the
normal duty of appearing before a grand jury and answering
questions relevant to a criminal investigation.") (emphasis added).
The subpoenas in Branzburg were thus justified because the "grand
juries [did not] attempt to . . . forc[e] wholesale disclosure of
names and organizational affiliations for a purpose that was not
germane to the determination of whether crime has been committed .
. . ." Id. at 700 (emphasis added). It was precisely the
relevance of the information sought to the investigation that
justified the public's need for it and, ultimately, the Court's
holding. Id. ("Nothing in the record indicates that these grand
juries were 'probing at will and without relation to existing
need.'") (emphasis added) (brackets in original omitted).
The Supreme Court has also explicitly rejected a
requirement of particularized relevancy in University of
Pennsylvania. See Univ. of Pa., 493 U.S. at 191 ("[W]hen a court
is asked to enforce a . . . subpoena, its responsibility is to
'satisfy itself that the charge is valid and that the material
requested is 'relevant' . . . .'"); see also In re Dolours Price,
685 F.3d at 17 ("[In University of Pennsylvania the Supreme Court]
also rejected a requirement that there be a judicial finding of
-20- particularized relevance beyond a showing of relevance." (citing
Univ. of Pa., 493 U.S. at 188, 194)).
In the investigatory context, "ordinary relevance"
embodies a broad reading of the concept of "relevance." Dow
Chemical Co. v. Allen, 672 F.2d 1262, 1268 (7th Cir. 1982) ("The
bounds of relevance . . . tend to be broader in the investigatory
context."). In this context, "ordinary relevance" is the same as
"pertinence." Thus, all materials relevant to the August 2011
subpoena (i.e. "the abduction and death of Mrs. Jean McConville")
are entitled to be produced.
Before moving forward, it is important to clarify that
the phrase "at least in situations distinct from Branzburg" in In
re Special Proceedings, 373 F.3d at 45, does not stand for the
proposition that only cases distinct from Branzburg require the
application of a balancing test. A balancing of First Amendment
concerns vis-à-vis the concerns asserted in favor of the compelled
disclosure of academic and journalistic information is the law in
this circuit for all First Amendment cases and, as explained in our
analysis above, "at least in situations distinct from Branzburg,"
there is room for courts to require direct relevance. In fact, in
Branzburg, the Supreme Court indeed performed, albeit sub silentio,
a balancing test in evaluating the First Amendment challenge raised
by the reporters. See Branzburg, 408 U.S. at 705 (balancing the
recognition of a newsman privilege against the impact such
-21- recognition would have on the courts, which would "be[come]
embroiled in preliminary factual and legal determinations" whenever
a reporter was subpoenaed); see also id. at 710 (Powell, J.
concurring) (a "claim to privilege should be judged on its facts by
the striking of a proper balance between freedom of the press and
the obligation of all citizens to give relevant testimony with
respect to criminal conduct. The balance of these . . . interests
on a case-by-case basis accords with the tried and traditional way
of adjudicating such questions."). In fact, in In re Dolours Price
we pointed out that "Branzburg weighed the interests against
disclosure pursuant to subpoenas and concluded they were so wanting
as not to state a claim." 685 F.3d at 18. After Branzburg, the
Supreme Court continued to engage in balancing tests in the context
of First Amendment challenges brought in academic contexts. See
Univ. of Pa., 493 U.S. at 200 (academic interests were "remote[,]
. . . attenuated . . . [and] speculative" and did not overcome the
interests in favor of disclosure).
Furthermore, Branzburg has not hindered our duty to
perform balancing tests in First Amendment cases, as evidenced by
Bruno & Stillman, where we stated that in Branzburg and Herbert v.
Lando, 441 U.S. 153 (1979), "the First Amendment concerns
articulated by the parties asserting privileges were in fact taken
into consideration by the Court, but found to be outweighed in the
contexts of those cases. This kind of fact-sensitive approach
-22- comports with the shifting weights of the competing interests."
Bruno & Stillman, 633 F.2d at 595. Also, in Cusumano we stated
that, "when a subpoena seeks divulgement of confidential
information compiled by a journalist or academic researcher in
anticipation of publication, courts must apply a balancing test."
Cusumano, 162 F.3d 716. Even in In re Dolours Price, we performed
a balancing test to evaluate the First Amendment challenge, yet
found Branzburg to be controlling precedent. See In re Dolours
Price, 685 F.3d at 18 ("The Branzburg analysis, especially as to
the strength of the governmental and public interest in not
impeding criminal investigations, guides our outcome.").
We now turn to the review of the subpoenaed materials,
keeping in mind that a finding of relevance is an evidentiary
finding we review for abuse of discretion. Lluberes v. Uncommon
Prods., LLC, 663 F.3d 6, 23 (1st Cir. 2011) ("The standard of
review concerning a claim of privilege depends on the particular
issue. Questions of law are reviewed de novo, findings of fact for
clear error, and evidentiary determinations for abuse of
discretion.") (citing Cavallaro v. United States, 284 F.3d 236, 245
(1st Cir. 2002)).
E. The August 2011 Subpoenaed Materials
The district court performed an in camera review of more
than 170 interviews of 24 interviewees. Those interviews were
provided to the court by BC after it performed an initial search of
-23- the Project's archives using search terms the government had
provided. As previously indicated, the district court then ordered
produced 85 interviews belonging to 8 interviewees. BC challenges
the order in relation to the production of all interviews, except
for one interview from one interviewee, which it concedes was
correctly ordered produced.
After carefully reviewing each of the materials in
question, we find that although a number of interviewees provide
information relevant to the subject matter of the subpoena and that
the district court acted within its discretion in ordering their
production, it abused its discretion in ordering the production of
a significant number of interviews that only contain information
that is in fact irrelevant to the subject matter of the subpoena.
Before properly stating the result of our review of the
materials we must note that in cases involving criminal
investigations such as this, many of the factual particularities
that inform a court's understanding of the case are contained in ex
parte sealed materials. Although these materials do not expand the
subject matter of the subpoena beyond its terms, they provide
valuable information to a court that cannot be publicly vented in
order to preserve the integrity of the investigation. The
following analysis, therefore, will be devoid of almost all factual
detail in order to preserve the integrity of the investigation.
-24- 1. Interview No. 3 with "P"
BC informed the court before it issued its January 20,
2012 Findings and Order, that BC had mistakenly labeled three
different interviews as "Interview 01 with Interviewee R" on their
cover page, when in fact only one was "Interview 01 with R,"
another was "Interview 03 with R," and yet another was "Interview
03 with P," as could be surmised from the first paragraph of each
transcript (as opposed to the cover page which contained the
error). The court nonetheless ordered the release of all
interviews labeled on their cover pages as belonging to "R." It
stated in a footnote that "[t]hree interviews with 'R,' all
denominated No. 1, have been reviewed. All are to be produced."
We must therefore presume that the district court found that "P's"
interview contained materials responsive to the subpoena.
A review of interview 3 with "P" reveals that the
district court should not have ordered it produced given that it
does not contain any information relevant to the subject matter of
the subpoena.
2. Interviews with "R"
The district court ordered the production of the 17
interviews comprising the entire series with "R." The district
court did not explain why it ordered the entire series produced.
Our analysis of the "R" interviews reveals that only two
interviews, 13 and 14, contain information relevant to the subject
-25- matter of the subpoena. The other fifteen interviews by "R"
contain nothing relevant to the subject matter of the subpoena
under an ordinary relevance standard and should not have been
ordered produced.
3. Interviews 7 with "D" and 4 with "K"
The district court ordered produced two interviews from
two different interviewees because it found, as it explained in its
January 20, 2012 Findings and Order, that they "mention a shadowy
sub-organization within the Irish Republican Army that may or may
not be involved in the incident (the time period and the
geographical location within Northern Ireland are generally
congruent with the incident)." The district court then expressed
that it was "virtually inconceivable" that the UK did not already
know the information," but that it was reticent to substitute its
judgment for that of law enforcement.
We have reviewed both interviews and find that the
district court did not abuse its discretion in ordering them
produced since they contain information relevant to the subject
matter of the subpoena. The district court was correct in
concluding that even if the UK already had the information, the
materials were still relevant to the subpoena and should be ordered
produced.
-26- 4. Interviews with "A"
The district court ordered the production of two
interviews in which "A" had provided answers to questions where the
interviewer specifically inquired about Mrs. Jean McConville. The
district court also ordered the production of eight other
interviews by the same interviewee even though they did not contain
information relevant to the subpoena. The district court did not
explain the reasoning behind its decision to order the production
of the entire series of interviews by interviewee "A."
After reviewing the interviews, we find that the district
court abused its discretion in ordering the production of the eight
interviews with "A" in which the death of Mrs. Jean McConville was
not mentioned at all by either the interviewer or by "A," and which
contain no relevant information relevant to the inquiry in question
by the subpoena. The fact that "A" responded to questions about
the McConville death does not automatically make his or her entire
contribution to the Project relevant to the investigation.
We thus find that only interviews 2 and 5 with "A" should
be produced.
5. Interviews with "S"
interviews with "S," interviews 1 and 2. After carefully
scrutinizing both, we deem that only interview 2 should have been
ordered released because it contains information relevant to the
-27- subpoena. Interview 1 does not contain any information that could
reasonably be deemed relevant.
6. Interviews with "Y"
The district court ordered BC to hand over 11 interviews
with "Y." We have also carefully reviewed these materials and find
that only interviews 4 and 10 contain information relevant to the
subpoena. The other interviews do not contain any information
relevant to the subject matter of the subpoena: "the abduction and
death of Mrs. Jean McConville."
7. Interviews with "Z"
The district court ordered the production of 42
interviews with "Z." After reviewing these interviews we find that
only interviews 11 and 42 contain information relevant to the
subject matter of the subpoena. The fact that such information is
found in two specific interviews does not automatically turn the
other 40 interviews by "Z" into materials that are relevant to the
subject matter of the subpoena. "Z" provided scores of information
relating to events spanning several decades. Only the interviews
containing information relevant to the subject matter of the
subpoena should be properly released. The rest of the interviews
contain nothing that could be reasonably considered relevant, and
are indeed, irrelevant.
-28- III. Conclusion
For the reasons set forth above, the district court's
order denying the motion to quash filed by BC and its order to
release 85 interviews is affirmed in part and reversed in part. We
thus affirm the order to turn over the following interviews:
interviews 13 and 14 with "R," interview 7 with "D," interview 4
with "K," interviews 2 and 5 with "A," interview 2 with "S,"
interview 4 and 10 with "Y" and interviews 11 and 42 with "Z." The
order is reversed as to the other interviews, which need not be
released. The case is hereby remanded for the continuation of the
proceedings consistent with this opinion.
Affirmed in part, Reversed in part, and Remanded. No
costs are awarded.
-29-