Full opinion text
ENSLEN, District Judge. ON MOTION TO COMPEL PRODUCTION After rendering an Opinion from the Bench on March 3, 1983 on Plaintiffs’ Motion to Compel the Production of Documents, the Court, so as to more fully set forth the basis of that decision, issues the following written Opinion. Based upon an asserted privilege which protects the government from disclosing the identity of its confidential informers, Defendants objected to certain of Plaintiffs’ requests for production of documents. After attempted conciliation between the parties with regard to the informer’s privilege failed, the Court was requested to intervene in the resolution of this dispute. The leading federal decision with regard to the government’s privilege against disclosure of the identity of informers is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), where the Supreme Court declared that: What is usually referred to as the informer’s privilege is in reality the 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. Scher v. United States, 305 US 251, 83 L ed 151, 59 S Ct 174; Re Quarles, 158 US 532, 39 L ed 1080, 15 S Ct 959; Vogel v. Gruaz, 110 US 311, 316, 28 L ed 158, 160, 4 S Ct 12 [14]. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. The scope of the privilege is limited by its underlying purpose. Id. at 59-60, 77 S.Ct. at 627. The court acknowledged that this privilege, which exists to protect the public interest and the free flow of information to law enforcement entities, is limited by nature. With regard to the limitation on the applicability of the privilege, the court specifically stated that it: ... arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these eases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication. Id. at 60-61, 77 S.Ct. at 627-628. (Footnotes omitted.) In footnote 8, the court states, with no mention of the informant’s family, that the death of the informant dissolves the privilege. Finally, Roviaro states that the Court must consider the particular circumstances of each case, the possible significance of the informer’s testimony, and any other relevant factors in balancing the respective interests. We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Id. at 62, 77 S.Ct. at 628. Based upon the foregoing, the Court must balance Plaintiffs’ right to prepare their case against the public interest in protecting the free flow of information. In Timken Roller Bearing Company v. United States, 38 F.R.D. 57 (ND Ohio 1964), the court indicated that: There is very little authority on the applicability of the informer’s privilege to civil cases ... Id. at 66. While that language suggests there may be no privilege which the government may assert in civil matters, the court nonetheless proceeded to order the production of those documents for an in camera inspection to determine whether “the statements ‘would not embarrass the informants in their social relations or their employment or endanger their safety.’ ” Id. at 66, quoting with approval Mitchell v. Bass, 252 F.2d 513 (CA 8 1958). Five years later, in Wirtz v. International Printing Pressmen & Assistants’ Union of North America, AFL-CIO, 47 F.R.D. 58 (ED Tenn.1969), Judge Neese applied the privilege and concluded that disclosure was not essential to a fair determination of the issues before him. Based upon a comparison of the Timken and Wirtz cases, it is apparent that there exists a split of authority over the applicability of the informer’s privilege to a civil lawsuit. The informer’s privilege has been well recognized as essential to effective enforcement of the Fair Labor Standards Act. Hodgson v. Keeler Brass Company, 56 F.R.D. 126 (WD Mich.1972); Dunlop v. Carriage Carpet Company, 548 F.2d 139 (CA 6 1977); and the opinion of the Hon. Benjamin F. Gibson in Usery v. Brandel, 87 F.R.D. 670 (WD Mich.1980). Likewise, the privilege has been applied in matters alleging violations of the Sherman Act. United States v. Lorain Journal Company, 10 F.R.D. 487 (ND Ohio 1950). Westinghouse Electric Corporation v. Burlington, 351 F.2d 762 (DC Cir.1965), involved a private treble-damages antitrust action, wherein the government asserted the privilege as a ground for quashing a subpoena duces tecum served by the defendants upon the Attorney General seeking the discovery of complaints filed with the government by utilities against electrical equipment manufacturers, it was noted that the policies behind the privilege and its exceptions extended to civil as well as criminal cases, and that there was no logical reason to set up two different privileges, one for civil and the other for criminal cases. Holding that the district court had not applied the proper standards in sustaining the privilege claim, the Court of Appeals remarked that most informers presumably do not want their names to be revealed in either civil or criminal proceedings, and that the competing interest, when balanced under the principles enunciated in Roviaro, should be struck in each case, be it civil or criminal, toward determining whether disclosure was essential in maintaining fairness. The court, however, also added that a Sherman Act treble damages action was not wholly a private civil action. Although some cases hold to the contrary, Brennan v. Automatic Toll Systems, Inc., 60 F.R.D. 195 (SD N.Y.1973), I find, after having reviewed all pertinent decisional authority, that the informer’s privilege is applicable to civil and criminal cases alike. The prevailing view is contained in the Supreme Court’s language in Roviaro that the informer’s privilege, and the compelling interests underlying that privilege, are essentially the same in criminal and civil cases. See e.g., Socialist Workers Party v. Attorney General, 565 F.2d 19 (CA 2 1977), cert. den., 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). In Hampton v. Hanrahan, 600 F.2d 600 (CA 7 1979), the United States Court of Appeals for the Seventh Circuit noted that: The determination of the guilt or innocence of a criminal defendant has been characterized as qualitatively more significant than civil litigation, thus justifying a higher threshold of justification for exceptions to the privilege in civil cases. However, the difference in “significance” of criminal and civil cases simply should be considered another factor in the Roviaro balancing test. Further, the proposition that all civil cases are less significant — and therefore require a higher level of justification for the disclosure of the identity of the informer — than all criminal cases is a dubious one. It would seem impossible to conclude absolutely that every criminal misdemeanor case is “more significant” than civil actions to redress, for example, egregious violations of an individual’s rights. Id. at 637, n. 40. Accordingly, the privilege may be asserted in civil actions, although, as can be gleaned from my previous remarks, it is a qualified privilege, subject to certain exceptions. Again, borrowing from Hampton: Since Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it has been clear that the so-called informer’s privilege (the privilege that protects the identity of a person which otherwise would be required to be disclosed during the course of litigation) is not absolute. In Roviaro the Court said, “Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id at 60-61, 77 S.Ct. at 628. The Court went on to explain the test to be applied to determine when disclosure is required: We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Id. at 636-637. The balancing process must take into consideration that an “[informer’s] identity cannot be concealed from the defendant when it is critical to his case,” Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 2665, 33 L.Ed.2d 626 (1972). See also, United States v. Edings, 478 F.2d 67, 70 (CA 6 1973); United States v. McManus, 560 F.2d 747, 751 (CA 6 1977). “[W]hen the evidence suggests ... that it is reasonably probable that the informer can give relevant testimony, the burden should be on the Government to overcome this inference with evidence that the informer cannot supply information material to the defense.” United States v. Edings, 478 F.2d at 71. Here, the interests of the government in protecting the safety of informers and continuing the unimpeded flow of information has been stated at length. What may escape analysis, however, is the interest of the Plaintiffs in a full and fair determination of their cause. In that regard, the case of Hampton v. Hanrahan, supra, is particularly relevant and helpful to the Court. Hampton was a civil rights action for monetary damages brought by members of the Black Panther Party and the mothers of two deceased party members against federal and state law enforcement officers. The suit arose from a gun battle which occurred in Chicago during the early morning hours of December 4, 1969. Two Black Panthers were killed and four others were injured by the gunfire. The plaintiffs alleged a conspiracy to deprive the occupants of the apartment where the gunfire and injuries occurred of the equal protection of the laws in violation of several sections of the Civil Rights Act. A critical question in that case concerned the government’s claim of privilege for an informant, whose representations led to the issuance of a search warrant for the apartment. 600 F.2d at 638-639. In remanding the case to the district court for a new trial, the Seventh Circuit Court of Appeals determined that a just adjudication of plaintiffs’ claims required that the informant’s identity be disclosed, subject to a restrictive protective order. After considering all possible alternatives, I can find no reason to reach a different result in the case at bar. As in Hampton, the instant Plaintiffs have asserted a conspiracy on the part of the government and breach of duty owing by the government to the Plaintiffs. Necessary to a resolution of those claims is a determination of whether and to what extent the FBI had prior knowledge of the planned violence in Alabama. Any information which the FBI possessed was gained through confidential informants and documentation generated through the use of those informants. After carefully scrutinizing the interests of the parties, I concluded that, on balance, the government’s interest in encouraging the free flow of information and in protecting past informants must yield to Plaintiffs’ rights. I recognize in this decision, beyond risk of peradventure, that the burden is on Plaintiffs to demonstrate that disclosure is necessitated. I find that the evidence introduced to date reveals substantial need by Plaintiffs to discover evidence, and I conclude that this need meets the burden required by Roviaro. Therefore, the government’s asserted privilege is overcome by Plaintiffs’ need for the information. The age of the informant’s information, 22 years, is included among the factors which tip the balance in Plaintiffs’ favor. Another factor in Plaintiffs’ favor is that to date the government has consistently refused to verify whether any or all of its informants are still living. Footnote 8 of the Roviaro opinion, convinces me that the privilege ceases to exist with the death of the informant. I recognize that this decision, ordering the government to turn over to the Plaintiffs the documents which I have reviewed in camera, creates a potential problem. Although I have determined that the balance weighs in Plaintiffs’ favor, I am concerned for the informers, and in an effort to reduce any potential problems to a live informant, if there be any, I will require that the disclosure be made in Chambers under a strict protective order, which will require that counsel not disclose information gained in Chambers to any other person, including their clients, and that they shall utilize such information only in furtherance of the claims here present. I will do this out of the concern for some person who may or may not still require protection, or who may or may not be alive. Based on the foregoing, Plaintiffs’ Motion to Compel all Defendants to produce documents is, hereby, granted. ON RECONSIDERATION OF SANCTIONS On March 7, 1983, after a full week of trial and repeated refusals on the part of Defendants to comply with discovery orders, this Court imposed sanctions upon the Defendants pursuant to Fed.R.Civ.P. 37(d) and 37(b)(2)(A) and (B). A copy of that Opinion, which was rendered in open court, is attached hereto as an Appendix. Presently this matter is before the Court on the “Response of the United States to the Plaintiffs’ Submission with Respect to Sanctions and Suggestion of Reconsideration,” which the Court will treat as a Motion for Reconsideration. The documents submitted by the Defendants seriously mischaracterize the events which led up to the imposition of sanctions. For that reason, a review of these events appears to be warranted. Discovery problems have plagued this lawsuit from its inception in 1977. Although Plaintiffs had moved to compel production on several occasions, the Court was not initially required to resolve those motions because, from time to time, the government opted to release some materials. In fact, during a pretrial conference, defense counsel remarked that voluntary disclosure of material by the government to Plaintiffs varied with the year, and that earlier “policy” had been more restrictive than “recent policy.” Eventually, however, when agreement could not be reached between counsel, the Court intervened in the discovery disputes and issued production orders. In an Order dated December 29, 1982 Defendants were directed to produce certain documents which had been requested by Plaintiffs. In an ex parte letter to the district court dated January 12, 1983, Edward C. Schmults, Deputy Attorney General of the United States, apparently acting on behalf of all Defendants but not a previous signator of pleadings, refused to comply with the Court’s Order. Schmults instead made three suggestions as partial alternatives: (1) appoint a magistrate to review in camera; (2) appoint a special master to review in camera; or (3) the Court itself could make such an in camera review. Despite the tone of the letter, in which Schmults seemed to confuse the role of the executive branch with that of the judicial, I adopted the first suggestion, and the documents were dispatched to United States Magistrate Stephen W. Karr for an in camera inspection. Following four full days of exhaustive examination and review, Magistrate Karr completed a Report and Proposed Findings of Fact which was forwarded to the Court on February 11,1983. By Order dated February 16, 1983 the Court adopted that report and the proposed findings pursuant to Fed.R.Civ.P. 52. Defendants incorrectly state that the in camera inspection by Magistrate Karr had completely resolved discovery problems and that “the Plaintiff was in the same position he would have been in had he been permitted access to the informant material.” In fact, the Magistrate’s review of the documents disclosed that additional production was necessary, and on February 16,1983 further in camera inspection was ordered by the Court. Defendants further erroneously characterize the matter by stating that “when the trial in this case began on February 28, it was assumed that the informant matter was resolved....” Inasmuch as the informant problem was still awaiting resolution on that date, nothing could be further from the truth. Moreover, Defendants’ statement is very curious because the additional body of materials had not been timely delivered to the Court’s Chambers, and even during trial defense counsel was unable to assure the Court that all of the materials ordered produced had been delivered. Early in the trial it became increasingly clear to me, as well as to Plaintiffs’ attorneys, that the procedures suggested by Deputy Attorney General Schmults regarding fact finding following an in camera inspection by the Court were unjust. Plaintiffs’ objections to the procedures proposed by Schmults fall into two broad categories. First, Plaintiffs submit that in interpreting the contents of the documents in question, it would be humanly impossible for the court or a magistrate to glean every piece of significant evidence in this case. Such a procedure would have made it virtually impossible for this Court, or a magistrate, to conduct its analysis with a sufficient level of knowledge of the evidence sought by Plaintiffs. See Ingle v. Department of Justice, 698 F.2d 259, 263 (CA 6 1983). Due to the complex nature of the legal and factual issues involved and the sheer bulk of the documents, it is inconceivable that a review of those documents by the Court or a magistrate could have adequately served the requirements of the Plaintiffs. Plaintiffs’ second objection to the proposed procedure involves their inability to participate in all phases of the fact finding process. Although the government’s proposals would have resulted in this Court making findings of fact, Plaintiffs would have had no opportunity to propose findings. Of equal importance, Plaintiffs would have been unable to challenge such findings because they would not have had access to the documents. In addition, defense counsel added condition upon condition to their proposals, eventually rendering worthless any in camera procedure leading to fact findings. After the proposals of the Defendants proved unjust and impracticable, the Plaintiffs urged me to examine the still unresolved assertion of the qualified and limited informant’s privilege. From the outset, I was concerned about jeopardizing the lives of past informants, and the public interest in protecting the flow of information from informant sources. However, I was equally concerned with affording Plaintiffs a full opportunity to present evidence that was essential to a fair determination of their cause. On balance, in an Opinion delivered in open court on March 3, 1983,1 concluded that the government’s interest must give way. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In so doing, I also relied in part on the recent decision of Hampton v. Hanrahan, 600 F.2d 600 (CA 7 1979), where a civil rights action for monetary damages had been brought by members of the Black Panther Party and the mothers of two deceased party members against federal and state law enforcement officers. The suit arose from a gun battle which occurred in Chicago during the early morning hours of December 4, 1969. Two Black Panthers were killed and four other members were injured by the gunfire. On appeal, the Seventh Circuit Court of Appeals reversed a directed verdict for the defendants and remanded for a new trial. Analogous to the instant controversy was the allegation in Hampton of an alleged conspiracy to deprive the occupants of the apartment where the gunfire and injuries occurred, of the equal protection of the laws in violation of several sections of the Civil Rights Act. A key question in the litigation concerned whether an informant, whose representations led to the issuance of a search warrant for the apartment, existed or was reliable. The Hampton court opined at 638-639: A determination that Groth’s informant did not exist would have significant ramifications for plaintiffs’ case. The warrant used to gain entry to the apartment would be supported only by the misrepresented, triple hearsay Groth received from Jalovec, and Groth’s own perjured statement. Perhaps more importantly, such a conclusion would bolster plaintiffs’ conspiracy claims. It would be powerful evidence of Groth’s bad faith vis-a-vis plaintiffs. And it would highlight the importance of the federal defendants in the alleged conspiracy. If O’Neal was the only eyewitness informant able to provide the crucial pre-raid information about the apartment, there could be no question that he and his conduit to the state defendants, Mitchell, were indispensable to the entire operation. Even if Groth did have an informant, disclosure of his identity would be important to a resolution of the case since that informant might be a critical figure in the conspiracy alleged by plaintiffs. If O’Neal, who was being paid for his work by the federal defendants, was also the informant Groth relied on in his affidavit, plaintiffs would have additional evidence of the federal involvement in the raid itself. Further, the person described by Groth as his informant — according to Groth a member of the BPP — could be a coconspirator. Groth said that his informant asked when he was going to “move on the crib,” and provided information about the weapons when told that the presence of weapons in the apartment would precipitate a raid. Also, as a member of the BPP, Groth’s informant may have been in the apartment or at least with Hampton the night before the raid — an important fact given the testimonial and scientific evidence introduced by plaintiffs suggesting that Hampton had been drugged prior to the raid. Disclosure of Groth’s informant’s identity is “essential to a fair determination” of this case. Roviaro, supra, 353 U.S. at 61, 77 S.Ct. 623. The plaintiffs’ request for disclosure is based neither on mere speculation about the informant’s identity, see United States v. Prueitt, 540 F.2d 995 (9th Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977), nor on a desire to extract punitive damages from an additional defendant. See Black v. Sheraton Corp. of America, 184 U.S.App. D.C. 65, 564 F.2d 550 (1977). We are mindful of “the public interest in protecting the flow of information,” Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 629, but we also are aware of the need to maintain the integrity of and confidence in the criminal justice system. The assertion of informer’s privilege by a law enforcement official defending against a civil suit for damages based on his own alleged official misconduct should be scrutinized closely. This case, in which plaintiffs have alleged gross misconduct by federal and state law enforcement officials and have presented serious evidence to support these claims, is of paramount significance. There is a serious factual controversy focusing on the existence or identity of Groth’s informant, and a resolution of this controversy is essential to a just adjudication of plaintiffs’ claims. Thus, we conclude that the public’s interest in encouraging the flow of information to law enforcement officials cannot prevail in this case, and that Groth must disclose the identity of his informant. In order to minimize both the risks to this particular informant and any adverse effects on law enforcement generally, we suggest that the appropriate parties move at the retrial for a protective order to set the terms of this disclosure. (Emphasis supplied). I could discover no reason and could employ no logic, neither then nor now, that is persuasive of a different result here. Plaintiffs have asserted a conspiracy on the part of the government and a breach of a duty owing by the government to the Plaintiffs. Critical to a resolution of those claims is a determination of whether and to what extent the FBI had prior knowledge of planned violence in Anniston and Birmingham. Any information which the FBI had was gained exclusively through the use of confidential informants and documentation generated through the use of informants. Closely scrutinizing the interest of the government in the balancing process revealed that the interests of the government in encouraging the free flow of information and in protecting past informants must, on balance, yield to the Plaintiffs’ superior right to discover, especially since the Plaintiffs had already presented serious evidence to support their claims. While the record is clear and unambiguous on this Court’s discovery orders, and subsequent sanctions for non-compliance, a curious, and wholly gratuitous submission by the government was filed, following trial, on March 18, 1983. It was styled: “Response of the Defendant of (sic) the United States to the March 5, (sic) 1983, Order of the Court,” and was signed by William H. Webster, Director of the FBI; and by Edward C. Schmults, Deputy Attorney General of the United States. Also, on March 7, 1983, the Department of Justice issued a “Press Release” defending the government’s refusal to comply with this Court’s discovery orders. I find it somewhat surprising that Director Webster and Deputy Attorney General Schmults infer that the Court had not considered all the appropriate elements in the balancing process. Even more surprising was the statement by the Department of Justice that the March 3, 1983 Order compelling disclosure was “unexpectedly entered.” The entry of that Order came as no surprise to anyone, particularly the Defendants, counsel for the defense, and the Department of Justice. That issue had been hotly contested from the outset, and had only been partially addressed by the Court in its December Order. When the Court attempted to follow the government’s suggestions for in camera inspection, the government effectively prevented the fact finding process by first requesting that the Court make the findings only in Chambers and under seal, and then, by proposing that those facts be disclosed outside of the presence of Plaintiffs or Plaintiffs’ counsel. Those proposals were made by Defendants’ trial counsel, who confidently predicted that if the Court followed this ex parte procedure, no facts would ever be disclosed, since the government argued that it would be able to convince the Court that any fact finding would be prejudicial to some informant, somewhere. Yet, perversely, the government refused to disclose to the Court or counsel whether any informant still lived, the death of the informant effectively extinguishing the very limited informant “privilege.” See Roviaro v. United States, supra. Even without these extraordinary government requests, Plaintiffs continued to argue that they would be extremely prejudiced by facts found by the Court from documents they had never seen. It was in this unique setting that the Court completed its research, and on March 3 resolved the issue of the limited informant’s “privilege,” and required Defendant government to produce. The March 3 Order was, then, consistent with the Court’s December 29 Order of Production. Between that December date, and March 3, the Court had attempted to comply with Defendant’s position on conditions it wanted for production. When those conditions and the repeated modified requests became unworkable and unjust, the Court was required to finally resolve the “privilege” issue. After that resolution, the Court still offered protection to the Defendant in the form of a very restrictive Protective Order requiring an in camera view by Plaintiffs’ counsel (without Plaintiffs), and by setting a difficult standard for Plaintiffs if they sought to continue their discovery from documents revealed. It was only when the government refused to comply, of course, that the Court ordered the sanctions. If anything was “unexpected,” it was that the government persisted in its prevention of discovery production, while relying on a “privilege”. The government never supplied the Court with the condition precedent for invoking such a “privilege”, that is, evidence of a single live informant. Nevertheless, Director Webster and Deputy Attorney General Schmults concluded in their March 18 submission: 10. We further believe that the trial in this case, had it been permitted to proceed, would have demonstrated that neither the United States nor its law enforcement personnel were responsible in any way for injuries Mr. Bergman incurred in this tragic episode. Nonetheless, the commitment to protect the identity of those who assisted our law enforcement personnel in Klan investigations is apparent, and the obligation toward those persons cannot be ignored. In addition, consideration also must be given to the preservation of the informant program, generally, and the impact disclosure of identities would have on the future of that program, as Attorney General Bell eloquently stated. Thus, our obligation transcends the interests of this particular lawsuit. (Pages 8-9). (Emphasis supplied). The trial in this case was not permitted to proceed solely because of the flagrant disobedience of the government. The sanctions imposed, precluding the Defendant government from presenting portions of its defense to the federal tort claims and allowing the Plaintiffs to submit proposed findings based upon the undisclosed documentation, were considered to be the most appropriate by this Court because they are the only sanctions which allow a resolution of the issues presented. Any other sanction would “sidestep” the ultimate question presented, resulting in an injustice to both the litigants and the public, six years after suit was commenced. Indeed, contrary to the assertion of Director Webster and Deputy Attorney General Schmults, the obligation of the Federal Bureau of Investigation cannot “transcend” the interests of this lawsuit where that obligation would thwart and denigrate the interests of justice under this nation’s system of laws. Defendants’ “suggestion of reconsideration” sets forth the argument that this Court’s discovery sanctions should be limited by Magistrate Karr’s Report and Proposed Findings of Fact. This contention ignores facts which compelled the Court to order the documents to be disclosed. As is clear from the record, the Court expended time, energy, and patience attempting to arrive at the best approach to the informant problem. Founded in large part upon the realization that the Deputy Attorney General’s proposal would work a considerable hardship upon the Plaintiffs, the Court ruled that Plaintiffs’ right to a full and complete hearing on their claims dictated that the Defendants produce the requested documents. Defendants’ present contention, that this Court should somehow be estopped from issuing any sanctions beyond the Magistrate’s Findings of Facts in conjunction with an in camera presentation, is supported by neither law nor logic. The process by which Magistrate Karr made his findings demonstrated to the Court the inherent unfairness of the procedure suggested by Defendants. Perhaps realizing this disadvantage to Plaintiffs, Defendants now seek to impose that unfairness upon Plaintiffs by preventing the Court from applying any sanctions beyond the Magistrate’s report. Defendants’ suggestion also contains an extensive discussion of the issue of bad faith. As previously set forth, this Court issued sanctions under Fed.R.Civ.P. 37(d) and (b). Inasmuch as there is no requirement of bad faith as a prerequisite to the application of sanctions under Rule 37, it is not altogether apparent to me why such a discussion is necessary. Rule 37(b) is simply founded on a party failing to obey an order of the Court regarding discovery. Defendants’ contention that this rule may not be employed under the facts of this case is factually and legally incorrect and is devoid of merit. Our constitutional system of government works because we want it to — we pay more than lip service to the rule of law. In this case, the FBI has not only argued the propriety of its refusal to disclose, but also wants to sit in judgment upon that refusal, thus ignoring the cornerstone of our system of constitutional government, the separation of powers. The sanctions imposed were necessary to ensure that this concept of government does not become something less than viable and real. The Defendants have requested that I reconsider the imposition of those sanctions. For all of the above reasons, Defendants’ Suggestion of Reconsideration is DENIED. APPENDIX ORAL OPINION AND ORDER OF MARCH 7, 1983 In this Courtroom, during the past week, a lawsuit has been tried which some believe presents issues of historical interest and raises new questions concerning the national government’s duty with respect to its citizenry. Witnesses recalled, sometimes emotionally, events which gave stark testimony to the gaping self-inflicted wounds America was suffering in 1961, and continues to suffer today, in dealing with the awful vestiges of slavery. Man’s inhumanity to his brother was never more vivid and distressing than in the witnesses’ reflections. The Defendants do not contest that this demonstration of violence by lawless mobs is reprehensible in the extreme. Indeed Plaintiffs, Defendants, their lawyers ... and the Court were pained by these recollections. At issue in this lawsuit, however, is the question of whether these Defendants owed a legal duty to Plaintiffs and others, and if so to what extent, to protect them on their peaceful and legal bus ride through the Alabama countryside and into its hate filled cities. Also in debate is the Defendants’ responsibility, or lack thereof, to arrest and prosecute the perpetrators of the 1961 violence. On such important issues, this Court expected, and had a right to expect, a full, complete, and fair presentation of evidence by both sides of the controversy in order to assist me in arriving at a just resolution of the issues. Such fairness and candor were not to prevail, however, as I finally, sadly, learned Saturday. For, removed from this public trial, another conflict was being waged. Principally at issue in this controversy was whether the Plaintiffs would learn, from the Defendants’ own files, what information Defendants had developed about the 1961 events, and additionally, what participation, if any, Defendants, or any of them, had undertaken in support of the planned violence or in the violence itself. Of major concern were the activities of FBI informants, including Rowe, and the Defendants’ knowledge, actions, or inactions regarding those informants. As Defendants succinctly pointed out in their opening statement, hard questions were being submitted to the Court, not the least of which involved our constitutionally proclaimed notions of federalism, and notwithstanding that resolution, any proximate causation attributable to these Defendants. It was clear that these issues would, for the greater part, have to be resolved by a rigorous examination into documents, disclosed, and undisclosed in the exclusive possession of the United States, a Defendant in this action. As a Defendant, the United States, through its counsel, decided which documents to make available to Plaintiffs and which to secrete. The Court was petitioned, by Plaintiffs, to require the United States to reveal the withheld materials, and the Court, after careful consideration ordered a limited production. Deputy Attorney General Schmults declined to obey the order, as previously noted by me, and I ordered in camera inspection. Following four full days of exhaustive examination, I ordered additional production to the Court, some of which, albeit tardy, was delivered to this Court’s Chambers late last week. On Friday evening, however, I learned to my surprise, that Mr. Sher could not assure me that all of the ordered production had arrived. Indeed, he wasn’t even certain that he could make such an assurance by next Tuesday, but “he would try.” During a final pretrial, several Saturdays ago, Plaintiffs’ counsel expressed some concern that the Court would make fact findings, from the undisclosed documents, since Plaintiffs would have no opportunity to dispute those findings as they would be derived from documents which they had been denied access to. My preliminary decision to make such findings emanated from the Deputy Attorney General’s suggestion, and from limited case law on the subject. The Plaintiffs’ expressed concern became mine because, although I had not previously considered it, such a process might, indeed, produce a harsh and unjust result, particularly since Defendants’ counsel predicted favorable findings. In the intervening weeks between pretrial and trial I reflected on the problems presented, and became uncomfortable about another obviously developing spectre — that of having a partly public and partly private and entirely secret trial. While sometimes necessary, such a bifurcation produces public uncertainty, unease, and suspicion, not to mention a complication of the appellate process. On Sunday, February 27, 1983 I resolved a small portion of the controversy by deciding that the government’s claim that the Rowe Task Force Report was privileged because it was a critical self-examination exercise, was clearly inapplicable since, among other reasons, it had been requested by two United States Senators, clearly severing the self from examination. Consequently, I ordered the production of the same parts of the report which Judge Stewart, in Peck v. United States, 514 FSupp 210 (SD NY 1981) ordered. That resolve prompted, in me, a hope- — no more — that my proposal to make fact findings would not be unfair to either side. Such hope was dashed, on Monday, the first day of trial, however, when government counsel added an additional request upon my fact finding; to wit, that it be done under seal and only preliminarily so that the government could have an additional opportunity to convince me that any fact found might reveal the identity of an informant. I had told the lawyers that I would carefully excise from my findings any data which could possibly lead to revelation of informants’ identities. This did not satisfy the government attorneys, however, nor was that a condition suggested by the Schmults letter in January. With some trepidation, I decided to comply with said additional request, and announced to the lawyers that I would (1) first make my fact findings, in Chambers, and under seal, and (2) allow trial counsel to consult with Washington, and following this exercise, to re-appear in Chambers to argue how my proposals might jeopardize some, to me, unknown informant. My trepidation stemmed from my growing concern that such a process would: (1) lengthen the trial period; (2) create uncertainty in the fact finding procedure; and, (3) most importantly, continue, in a major fashion, to obscure, from Plaintiffs, important truths. Trepidation became alarm, by Wednesday, when government counsel proposed yet another condition on its own proposal — that my agreed upon preliminary fact finding be disclosed only in the presence of government counsel and out of the presence of Plaintiffs’ counsel. Now, apparently, it was requested that a curious, to say the least, trial within a trial would be conducted without the presence of one side. While possibly proposed in good faith, the result was judicially shocking because it was not an in camera review that would be monitored by Defendants, but rather the Court’s own decision making process. Such suggestions led me to conclude that I must resolve the still unresolved assertion of the qualified and limited informants privilege. I had indicated my concern about informants from the outset, as noted by Schmults, but I retained reservations about its applicability because, among other reasons, of the ancient nature of the supplied information and because the government had refused to even simply divulge whether any informant still lived — the latter concern dissolving any privilege which may have existed. I also began to muse whether the government was really as concerned about informers as it was about shadows of a darker hue. This musing was prompted by the only in camera documents which I personally reviewed last Sunday and by the reluctance of the government that I make findings despite Schmults’ suggestion. My decision on the limited informant privilege is a matter of record as of last Thursday. Legal research convinced me that it did not pertain, after a careful balancing of interests, to the instant facts. Having thus resolved the issue, I could have ordered open production by the government, but I did not do so. Caution and concern prompted me to order sealed review by Plaintiffs’ counsel under a strict protective order. Caution, because I do not know what the bulk of the material is, and concern because I feared government disobedience might possibly result from unrestricted delivery to Plaintiffs. On Friday morning Defendants’ counsel announced in Chambers its decision to comply with the order provided a seven point protective order be issued by the Court. I ordered Plaintiffs’ and Defendants’ counsel to meet Friday afternoon and attempt to agree on a proposed protective order. By 6:30 in the early evening I met with counsel again and was pleased to learn of their agreement on the bulk of such an order, but chagrined that they had failed to agree on two items. In summary Defendants wanted Plaintiffs’ counsel to waive any further investigation or their right to other documentation which might be prompted by the soon to be revealed documentation. Plaintiffs argued that they could not be so restricted to material which they had never seen. After reflection on the new dispute I told the lawyers, on the record, Friday evening that I would so restrict the Plaintiffs’ lawyers, but that if the secret material required them to look further, I would entertain a motion to that effect; but that I would not permit further investigation or review unless Plaintiffs made a very strong showing of need — indeed to comfort the government I used the phrase that Plaintiffs had an “overwhelming and substantial burden” and that if they could not meet this burden further discovery would not be permitted. Once again the government lawyers wanted to call Washington and Court adjourned. On Saturday morning Mr. Sher made the following announcement to the Court and counsel in Chambers: After consultation with Washington, we have been instructed by the Deputy Attorney General of the United States that in view of the fact that, that we cannot be certain that disclosure will be limited to the, if we can use the phrase, group of seventeen, we cannot comply with any disclosure order with regard to informant’s material. In view of the government’s disobedience, I am today confronted with the problem of how this trial may fairly proceed. I was totally unprepared for the newest refusal, although on reflection, perhaps I should have been. Although not entirely precedential, the government, for the most part obeys lawful Court orders; witness the chief executive of the second branch of our government, President Nixon, obeying a District Court production order regarding White House tape recordings. Indeed the doctrine of separation of powers dictated that result reached in United States v Nixon, 418 US 683, 94 SCt 3090, 41 LEd2d 1039 (1974); the same doctrine requires production in Bergman v United States. Our constitutional system of government works because we want it to. We pay more than lip service to the rule of law as it has come to be known. After all Judge John J. Sirica did not command a vast army or any army at all. He had to count on the executive branch, after he adversely ruled on the government’s assertion of executive privilege, to voluntarily comply with his mandate. I often employ this example in speaking to juries as an illustration of our judicial and constitutional system. I fear, given the publicity of the government’s refusal, that I may never again be able to so instruct a jury. That all parties are expected to comply with a Court order is unquestioned. That the government is no different from a private citizen is also without serious debate. When the government is also the Defendant in a lawsuit, such refusal must be viewed with alarm. The chilling effect on a citizen’s right to challenge official activity is all too apparent. Who will win this lawsuit is, today, unknown to me and hence to all. What is known, sadly, is that the remaining portions of this trial may be conducted unfairly, unless I address the government’s position properly, since one side remains, in part, ignorant about official and critical documents. The saddest thing we know, however, is who the real loser is — the American public — which public has a right to expect compliance with a Court order — so that we may continue to function as a republic controlled by law and not by the powerful. And so it has been a lonely and unpleasant weekend for me. That I cannot ignore the government’s disobedience is conceded by government counsel. To endorse such conduct indeed, would be to approve lawlessness and be reprehensible as it would not, among other reasons, command respect for the American judicial system and deter future disobedience. In considering, over the course of this weekend, what sanctions to impose I, therefore, looked to several of the documents which have been provided to the Plaintiffs and are, either in evidence or stipulated to by the parties that they may be placed in evidence. My reasons for doing so were to see if I could determine: (1) what Plaintiffs already know, and; (2) what prompts them to want to see more, so that I could try to interpret and predict the importance of the undisclosed material to the issues in the case at bar. I found a memorandum dated May 15, 1961 authored by FBI Director J. Edgar Hoover and addressed to Attorney General Robert F. Kennedy which reads in pertinent part: * * sjs * * * Our Birmingham Office notified the Anniston, Alabama, Police Department on May 13, 1961, that the subject group would be in Anniston on May 14,1961, for a fifteen minutes’ stop, and a group of klansmen planned to prevent the individuals from using the facilities of the bus station at Anniston. (Plaintiffs’ Exhibit 72.) Equally as critical is a June 1,1961 letter composed by Attorney General Kennedy and directed to Congressman Huddleston. That letter is set forth in its entirety below: Honorable George Huddleston, Jr. House of Representatives Washington 25, D.C. Dear Congressman: Our actions in the recent incidents in Alabama were set forth in detail in telegraphs to Governor Patterson and members of the Alabama delegation in the Congress, copies of which were sent to you. Our responsibility was quite clear — to maintain the safety of interstate bus transportation when the local authorities proved unwilling or unable to do so. This is what we did — nothing more and nothing less. With best wishes, Sincerely, Attorney General RFK:EG:dj cc: Files (Plaintiffs’ Exhibit 170.) The above quoted letter clearly speaks to a duty on the part of the government. Edward R. Murrow once asked: “Who speaks for Birmingham” — I ask who speaks for the United States? The duty position of Attorney General Kennedy, immediately following the incident, or that of trial counsel 22 years later? I note that (now) Justice Byron White (then Deputy Attorney General), in his trial deposition, agrees with Robert Kennedy’s view of the FBI’s duty with respect to the Freedom Riders. The letter also relates that the government met that duty. Unfortunately, for all of us, the. evidence produced in this case contradicts the Attorney General’s last sentence. I am satisfied by this brief review of the apparent importance of this material to the Plaintiffs and to the cause of fairness and justice. Having proffered evidence which is satisfactory to the Court to establish portions of a right to relief, I can only infer that the undisclosed and secret documentation is even more critical and important than I, at first, postulated. What lies undisclosed and secret must, therefore, be made known to Plaintiffs so that like any other party in any other lawsuit, they may fairly and adequately present their claims. But it will not be known, and they, and the public, and all of us, are to be deprived of the whole truth. The government’s disobedience imposes on the Court an obligation to right the wrong, and the resolution I am about to order will essentially conclude presentation of evidence on these contested issues. Quite possibly the government will be satisfied by such a result because its refusal to disclose obfuscates, to a degree at least, the truth and so I will seek to present as much truth as is possible under the circumstances. During my weekend reflections, I wondered why the Justice Department would not wish — after all it suggested critical self-evaluation as a defense to disclosure earlier — to make a complete revelation since Judge Webster’s FBI is obviously not Hoover’s and since 22 years have passed. It occurred to me that Kemp and Jenkins may have been poorly represented in this secrecy matter, since if they had independent counsel, they may well have made the same disclosure demands the Plaintiffs have made. It has also occurred to me that today’s rank and file FBI agents and personnel have been slighted and may well desire the government to defend this case on the merits rather than having the government invoke the cloak of secrecy. What might be the shadows of a darker hue to which I earlier alluded? Since I haven’t read the great bulk of the material, I cannot know, but my brief review last Sunday of the admitted evidence reminds me of Norman Couzens’ warning: THE GOVERNMENT CRIES OUT that its secrecy has been violated. Of what stuff does this secrecy consist? Not infrequently it consists of malcalculations, errors of, historic proportions and attempts to conceal them, and plans and manipulations that run counter to constitutional government and that reflect contempt for free institutions. The fact that such materials have been classified as “Secret” is understandable in terms of the threat to the personal security of the men who made the errors and did the classifying. But it is not tolerable to the American people, whose security is tied to clearly defined constitutional safeguards. These constitutional safeguards persuade me that citing certain parties for contempt will simply serve to create a public spectacle pitting the Court and the Justice Department on opposite sides of the controversy ... while not aiding the causes here joined. Also, I am persuaded, by the events of the last months, that such an order of incarceration or fine would not shed any light whatsoever upon the hidden documents. And so I turn to the kinds of sanctions most appropriate in view of the events that have led to this impasse. Federal Rule of Civil Procedure 37(b), invoked here pursuant to subsection (d) of that rule, describes the kinds of action a court may take in response to a party’s noncompliance with discovery. The rule gives the Court discretion to “make such orders with regard to the failure as are just,” and provides for sanctions of varying degrees of severity. Specifically, the Court may impose costs, make findings of fact against the offending party, and prohibit defenses; a Court may also enter a default judgment under this rule. Underlying these sanctions is a threefold purpose, which has been described by the Second Circuit in Cine Forty-Second St. Theatre v Allied Artists, 602 F2d 1062, at 1066 ([2nd Cir.] 1979) (citations omitted): Preclusionary orders ensure that a party will not be able to profit from its own failure to comply.... Rule 37 strictures are also specific deterrents and, like civil contempt, they seek to secure compliance with the particular order at hand.... Finally, although the most drastic sanctions may not be imposed as “mere penalties,” ..., courts are free to consider the general deterrent effect their orders may have on the instant case and on other litigation, provided that the party on whom they are imposed is, in some sense, at fault. Of course, the most satisfactory role of the sanction is that of obtaining compliance with the Court’s order, since such a result “cures” the problem and allows the Court to resolve the matter on the merits after full disclosure of the facts. However, as I have noted above, the government has made it clear that such compliance is not a realistic expectation in this case. Instead, the pervasive effect of the government’s non-disclosure in this case requires strong measures in order to meet the remaining objectives of Rule 37. Other courts, under similar circumstances, have also found the need to invoke severe sanctions against the government. In Reynolds v United States, 192 F 2d 987 (CA3 1951), rev’d on other grounds, 345 US 1 [73 S.Ct. 528, 97 L.Ed. 727] (1953), the government had refused to turn over records from the Air Force’s official investigation of an air crash in which plaintiffs’ civilian husbands had been killed, claiming that the documents contained military secrets. The records were critical to plaintiffs’ negligence claim under the Federal Tort Claims Act, and when compliance with the court’s in camera production order was not forthcoming, the court ordered sanctions under Rule 37. Invoking what is now 37(b)(2)(A) and (b)(2)(B), the court ordered that the negligence of the government would be taken as established and that the government would not be allowed to controvert that fact. A hearing was then held on the issue of damages and a judgment entered in favor of the plaintiffs. These sanctions were upheld by the Third Circuit on appeal. Similar sanctions were invoked more recently in Kahn v Secretary of HEW, 53 FRD 241 (D Mass 1971). In that action under the Civil Rights Act, 42 USC § 1983, plaintiff charged that the government had denied him a position with the Public Health Service on arbitrary or discriminatory grounds. Plaintiff had been advised by letter that he was rejected because he was not fully qualified; the government later conceded plaintiff’s qualifications in its answer to plaintiff’s complaint, but refused to disclose the basis to its decision. Specifically, the government refused to produce its loyalty and security evaluation of plaintiff in camera, claiming the documents were “classified.” The court imposed 37(b)(2) sanctions, on the grounds that defendant was in bad faith trying to deny plaintiff a fair determination of his claim, and that the documents were critical to plaintiff’s case. Based on some evidence available to the court from the record, the court made findings that a security investigation of plaintiff had disclosed a publicly asserted opposition to the Vietnam war. On plaintiff’s motion for summary judgment after sanctions were imposed, the court held that such activity was protected by the First Amendment and that judgment should be entered for plaintiff. The government was likewise precluded on fact issues in United States v Sumitomo Marine & Fire Insurance Company, 617 F 2d 1365 (CA9 1980). In that case, the government had repeatedly and over a period of time avoided compliance with the court’s discovery orders. Upholding the trial court’s imposition of sanctions, the Court of Appeals noted that “the effectiveness of and need for harsh measures is particularly evident when the disobedient party is the government,” in light of the goal of general deterrence and notions of public interest. Id. at 1370. I find that there is ample authority for my decision to impose severe sanctions against the government in this case, much as the sanctions were applied in the cases discussed above. That Plaintiffs are prejudiced by the non-disclosure is obvious, not only in the sense that they are deprived of access to specific facts central to their claims, but because Plaintiffs are deprived of even the knowledge of the scope and nature of the undisclosed information. Such forced ignorance can only pervade the entire proceeding, to Plaintiffs’ detriment. It is the Court’s task to now apply sanctions in such a way as to preclude the government from benefiting by its course of action, fulfill the goal of general deterrence of such conduct in the future, and to ensure that fairness is not violated. Pursuant to Rule 37(b)(2)(B) and in light of the problems caused by the refusal to produce documents, the government must be foreclosed from controverting Plaintiffs’ evidence or proceeding with its defense, on all but statute of limitations grounds. I reached this conclusion only after searching for some way in which I might be able to ensure that the matter could proceed fairly. I find that all avenues are blocked by the effect of the government’s conduct. Because the content of the documents is unknown to Plaintiffs, they cannot know what evidence introduced by the government comes from the undisclosed records. They cannot know of areas of potential cross-examination or rebuttal. The Court is in no better position, since I too am unaware of the contents of the documents. I cannot know if the government’s evidence is limited to matters outside the realm of those secret materials. In fact, I cannot imagine that the documents would not be implicated at some point. Nor can I adequately remedy the problem by myself delving into the undisclosed materials in camera. If I tried to make in camera findings based on the content of the materials I would be invoking the ex parte procedures Defendants originally sought, with all the attendant unfairness which I have considered throughout this discovery issue. I cannot allow the government to benefit by its conduct. Nor am I willing to take on the role of advocate on behalf of the Plaintiffs by sifting through documents and making selective fact findings. On the other hand, outright disclosure of the documents, while physically possible because they remain in the Court’s possession, would violate the Court’s position as a kind of “trustee” of the papers. This kind of self-help remedy would also go against this Court’s stated concern for the informants who may be harmed by such full and public disclosure. My review of the “secret” documents would leave other problems unsolved, even if I were not to make fact findings from their contents. How could I use the information gained by my review, to referee the remainder of the trial in an effort to exclude reference to facts in the documents or to prevent Defendants from going into areas where the documents might be of use to Plaintiffs? The scope of the task alone is overwhel