Tuite v. Henry

181 F.R.D. 175, 1998 U.S. Dist. LEXIS 12140, 1998 WL 458102
CourtDistrict Court, District of Columbia
DecidedJuly 31, 1998
DocketNo. 94-268 (RCL)
StatusPublished
Cited by91 cases

This text of 181 F.R.D. 175 (Tuite v. Henry) 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
Tuite v. Henry, 181 F.R.D. 175, 1998 U.S. Dist. LEXIS 12140, 1998 WL 458102 (D.D.C. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

LAMBERTH, District Judge.

This matter comes before the court on remand from the United States Court of Appeals for the District of Columbia Circuit, Tuite v. Henry, 98 F.3d 1411 (D.C.Cir.1996), directing this court to consider the factors contained in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), with respect to plaintiffs’ Motion to Comply with Subpoena served on Michael Shaheen, Jr., Counsel for the Office of Professional Responsibility of the Department of Justice (“OPR”). Upon consideration of the submissions of the parties and the relevant law, including the decision by the Court of Appeals, plaintiffs’ Motion to Comply, on Remand, with Subpoena Dated July 20,1994 is denied.

I. Background

Attorneys for the defendants in the criminal case United States v. Infelise, No. 90 CR 87, 1991 WL 246575 (N.D.Ill.1991), alleged that certain conversations with their clients conducted in a private room on the nineteenth floor of the Metropolitan Correctional Center (“MCC”), the federal jail in Chicago, were improperly recorded.1 In August 1991, copies of a cassette tape recording containing these privileged conversations were delivered to the attorneys who now stand as plaintiffs in the matter presently before this court. United States v. Infelise, 1991 WL 246575 (N.D.Ill.1991). Upon receiving copies of the tapes, the attorneys notified the Chief Judges of the District Court for the Northern District of Illinois and the Court of Appeals for the Seventh Circuit, as well as the United States Attorney for the Northern District of Illinois. The Office of Professional Responsibility of the Department of Jus[176]*176tice (“OPR”), in conjunction with the United States Attorney’s Office for the Northern District of Illinois, began an investigation to determine who made the tapes at issue.

During the course of the investigation, OPR requested that the investigatory files remain under seal and this request was granted by Judge Ann Williams of the Northern District of Illinois, the judge presiding over the criminal trial. At the conclusion of the criminal trial, the attorneys whose conversations were taped filed a civil suit in the federal district court for the Northern District of Illinois claiming that the taping violated federal wiretapping laws and the Constitution. Tuite v. Henry, No. 93-C-3248 (N.D. Ill. filed May 28, 1993).

Despite the Court of Appeals for the Seventh Circuit’s noting that the final OPR report generated during the course of the investigation into this matter “indicated that the investigation had been totally inconclusive,” with respect to who was responsible for the alleged taping, United States v. DiDomenico, 78 F.3d 294, 298-99 (7th Cir. 1996), cert. denied, — U.S.—, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996), the attorneys, now plaintiffs, subpoenaed this report. OPR refused to comply with this subpoena and asserted the law enforcement investigatory privilege, the deliberative process privilege, and other evidentiary privileges.2 Plaintiffs then filed a motion in this court seeking to compel OPR to produce the investigatory report at issue. Tuite v. Henry, Misc. No. 94-268 (D.D.C. Oct. 6, 1995).

This court denied the motion to comply, finding that the government properly raised the law enforcement investigatory privilege and that plaintiffs failed to demonstrate sufficient need to overcome this privilege. This court dismissed plaintiffs’ action without prejudice and indicated that plaintiffs could renew their claim upon a more fully developed showing of need.

Plaintiffs appealed this court’s decision to the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals affirmed this court’s determination that OPR properly asserted the law enforcement investigatory privilege, but remanded the case for further consideration of the applicability of this privilege under the standard established in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), as cited in In re Sealed Case, 856 F.2d 268, 272 (D.C.Cir.1988). The Court of Appeals instructed this court to consider the information contained in plaintiffs’ declarations which stated that contrary to defendants’ claims, plaintiffs never received a list of people with access to the MCC room and that there were no effective alternative means of obtaining the information in the OPR report, along with any other facts that would facilitate a weighing of the competing interests in this case. Tuite, 98 F.3d at 1419. With these considerations in mind, the court again turns its attention to plaintiffs’ motion.

II. Analysis

A. The Law Enforcement Investigatory Privilege and the Frankenhauser Standard

Plaintiffs’ subpoena seeks all documents, including reports and memoranda, concerning the alleged taping of attorney-client communications at the MCC in the criminal case of United States v. Infelise. As stated, in response to this subpoena, OPR asserted that the law enforcement investigatory privilege permitted OPR to withhold these documents from production. The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement. The privilege serves to preserve the integrity of law enforcement techniques and confidential sources, protects witnesses and [177]*177law enforcement personnel, safeguards the privacy of individuals under investigation, and prevents interference with investigations.

In the instant case, this court has already determined that OPR properly asserted the law enforcement investigatory privilege and this determination was affirmed by the Court of Appeals. Because this is a qualified privilege, its application necessarily requires a court to weigh the government’s interests in ensuring the secrecy of the documents in question against the need of the adverse party to obtain discovery. The court in Frankenhauser listed several factors which, although not exhaustive, are useful in making this determination: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is nonfrivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiffs ease. 59 F.R.D. at 344. See also In re Sealed Case,

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181 F.R.D. 175, 1998 U.S. Dist. LEXIS 12140, 1998 WL 458102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuite-v-henry-dcd-1998.