Wilkinson v. Federal Bureau of Investigation

111 F.R.D. 432, 5 Fed. R. Serv. 3d 29, 1986 U.S. Dist. LEXIS 22189
District Court, C.D. California·Decided July 28, 1986·No. No. CV 80-1048 AWT·Published·Cited by 14 cases

Opinion

MEMORANDUM DECISION AND ORDER

TASHIMA, District Judge.

This is an action arising out of the Federal Bureau of Investigation’s (“FBI”) surveillance and investigation of the National [434]*434Committee Against Repressive Legislation (“NCARL”)1 and Frank Wilkinson (“Wilkinson”), NCARL’s former Executive Director. Plaintiffs allege, inter alia, that the FBI conducted its investigation for an improper motive, i.e., to monitor and harass plaintiffs in the exercise of their First Amendment rights, and employed various illegal investigatory techniques, e.g., so-called “black bag” jobs, in violation of 42 U.S.C. §§ 1983-1986 and the United States and California Constitutions. They seek money damages and injunctive relief. Plaintiffs are NCARL; Wilkinson and four sustaining members of NCARL. In addition to the named plaintiffs, the Court also has certified a class, for the purposes of damages only, consisting of all individuals who have been sustaining members of NCARL for at least one year from 1960 to the present. See Wilkinson v. FBI, 99 F.R.D. 148 (C.D.Cal.1983).

On March 25, 1986, defendants served Anne Braden (“Braden”), a long-time civil rights activist in Kentucky, with a subpoena duces tecum re deposition. The subpoena required that Braden produce “all documents pertaining to the National Committee Against Repressive Legislation in the witness’ possession, custody, or control.” Plaintiffs and Braden have moved for a protective order that the documents need not be produced.2 Taking of the deposition has been deferred pending the Court’s ruling on the motion.

BACKGROUND3

Braden has been involved in the civil rights movement in the South for over 30 years, primarily with the Southern Conference Educational Fund (“SCEF”). She and her husband, Carl Braden, started out as organizers for the SCEF, and were the Executive Directors of the group from 1966 to 1972. Braden became involved in the effort to abolish the House Un-American Activities Committee when her husband Carl was jailed in 1961 for refusing to answer the Committee’s questions regarding the integration movement.4

During this period, Braden worked with NCARL’s predecessor, the National Committee to Abolish the House Un-American Activities Committee (“NCAHUAC”). Since that time, she has periodically made financial contributions to NCARL and she has been a Vice Chair of NCARL for many years. As indicated, although Braden is not a named plaintiff in this action, all parties agree that she is a member of the plaintiff class.

The documents at issue are the personal files of Carl and Anne Braden, compiled in the course of their many years of activism in the civil rights movement in the South. The files consist of over 240 boxes of documents, tapes and microfilm and were donated to the State Historical Society of Wisconsin (the “Historical Society”) in several installments, beginning in 1966. Each of these donations was made pursuant to an agreement between the Bradens and the Historical Society under which the society agreed that access to the documents would be restricted to those persons having writ[435]*435ten permission from Braden to study the files.5 The agreement has a five-year term. Upon its expiration, the general public is to have access to the documents. However, the agreement is renewable by Braden personally and she has renewed it every five years. The agreement’s current renewal/expiration date is January 1, 1987. Braden states that she intends to renew it at that time for an additional five-year term.

Defendants became aware of the Braden collection during the course of discovery, in early 1986. After several unsuccessful efforts informally to obtain access to the documents, they noticed Braden’s deposition and caused the subpoena duces tecum in question to be issued.

ISSUES

Braden’s motion for a protective order is based on three alternative grounds:

1. That she has a qualified First Amendment privilege against disclosure, on the basis that the subpoena infringes her rights of free association, free speech and privacy, and cannot meet the heightened level of scrutiny mandated by that privilege.

2. That because the documents are deposited in an archive and are used by scholars, access to the government should only be granted if such discovery meets the criteria applicable to a claim of First Amendment privilege. She is joined in the assertion of this “archival” privilege by a group of scholars, historians and archivists who have filed an amici brief arguing for the creation and application of such a new archival privilege to the documents in question and by the Attorney General of the State of Wisconsin, as amicus.

3. That even if the Court declines to apply the above privileges, the call of the subpoena should be narrowed because it is unduly burdensome and unreasonably cumulative under F.R.Civ.P. 26(b)(1).

For the reasons set forth below, I conclude that Braden’s motion should be denied.6

DISCUSSION

1. The First Amendment Associational Privilege.

Braden argues that because the files were accumulated during her many years of political activism, and are the complete record of her political activities and associations, disclosure of these records to the government would be a direct intrusion upon her First Amendment rights of freedom of association, speech and privacy.7

[436]*436Braden thus argues that the Court should apply a qualified privilege to the documents in question, thereby subjecting the government’s subpoena to a heightened level of scrutiny. She then contends that the subpoena falls short of the requisite First Amendment standard.

In support of this argument, Braden cites several cases applying a qualified First Amendment associational privilege in the context of discovery. However, all of these cases are clearly distinguishable from the one at bench. The information sought to be protected in each of those cases was a group’s membership list or list of financial contributors—information at the core of the group’s associational activities. In contrast, Braden seeks to apply the privilege not to specific membership documents, but instead to prevent any discovery of her files. While it is clear that the privilege may be asserted with respect to specific requests for documents raising these core associational concerns, it is equally clear that the privilege is not available to circumvent general discovery. Because Braden has failed to show as a threshold matter that the privilege is applicable to the discovery request at issue, the Court cannot issue a protective order on that basis.

Although there are relatively few cases applying a First Amendment privilege to discovery disputes, it is settled that such a privilege exists. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also, e.g., Britt v. Superior Court, 20 Cal.3d 844, 143 Cal.Rptr.

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Wilkinson v. Federal Bureau of Investigation, 111 F.R.D. 432, 5 Fed. R. Serv. 3d 29, 1986 U.S. Dist. LEXIS 22189 (C.D. Cal. 1986).

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