The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Plaintiff,
v.
Clarence M. KELLEY et al., Defendants.
Civ. A. No. 77-0175.
United States District Court, District of Columbia.
Nov. 29, 1977.
In a class action against federal officials alleging a conspiracy to harass
and destroy a church and to interfere with the church's First Amendment rights,
the church and members of the class it sought to represent propounded
interrogatories to defendants and moved to compel the answering of such
interrogatories. The District Court, Charles R. Richey, J., held that the
government's interest in preserving the secrecy of an ongoing criminal
investigation outweighed movants' need for the information sought.
Motion denied.
[1] FEDERAL CIVIL PROCEDURE
In class action brought by church against federal officials on allegations that
defendants had conspired to harass and destroy church and interfere with First
Amendment rights of its members, church had standing to require federal
officials to answer interrogatories, and fact that members of putative class
joined in motion to compel answer to such interrogatories would not be fatal to
church's motion. Fed.Rules Civ.Proc. rule 33, 28 U.S.C.A.;
U.S.C.A.Const. Amend. 1.
[2] FEDERAL CIVIL PROCEDURE
Where action alleging conspiracy of federal officials to harass church and its
members and deprive members of their First Amendment rights was brought as
class action, members of putative class had standing to require that defendants
respond to interrogatories filed by them. Fed.Rules Civ.Proc. rule 33, 28
U.S.C.A.; U.S.C.A.Const. Amend. 1.
[3] FEDERAL CIVIL PROCEDURE
In class action brought by church against federal officials for defendants'
alleged conspiracy to harass church and its members and deprive members of
their First Amendment rights, interrogatories propounded by church and its
members were relevant to allegations of pattern and practice of harassment.
Fed.Rules Civ.Proc. rule 33, 28 U.S.C.A.; U.S.C.A.Const. Amend. 1.
[4] FEDERAL CIVIL PROCEDURE
Litigant should not be allowed to make use of liberal discovery procedures
applicable to civil suit to avoid restrictions on criminal discovery, thereby
obtaining documents he might not otherwise be entitled to for use in his
criminal suit. Fed.Rules Civ.Proc. rule 33, 28 U.S.C.A.
[5] FEDERAL CIVIL PROCEDURE
In class action brought by church on behalf of its members, in which it was
alleged that federal officials conspired to harass and destroy church and to
interfere with members' First Amendment rights, court will deny motion to
compel federal officials to answer interrogatories served upon them where it
appears that government's interest in preserving secrecy of ongoing grand jury
investigation outweighed plaintiffs' need for information requested.
Fed.Rules Civ.Proc. rule 33, 28 U.S.C.A.; U.S.C.A.Const. Amend. 1.
*378 John W. Karr, Earl C. Dudley, Jr., Washington, D.C., Philip J.
Hirschkop, Alexandria, Va., for plaintiff.
Barbara Allen Babcock, Asst. Atty. Gen., Barbara B. O'Malley, Brian G.
Kennedy, Elizabeth Gere Whitaker, Dept. of Justice, Civil Div., Washington,
D.C., for defendants.
MEMORANDUM OPINION
CHARLES R. RICHEY, District Judge.
This case is before the Court on a motion to compel answers to interrogatories
propounded *379 to the defendants Clarence M. Kelley and Griffin Bell. The
complaint seeks damages and injunctive relief, alleging, inter alia, that a
massive conspiracy has been maintained since 1955 to harass and destroy the
Founding Church of Scientology and to interfere with the first amendment rights
of members of the Church.
The plaintiff and the movants [FN1] have sought a preliminary injunction to
prevent the alleged harassment and, in order to obtain proof thereof, have
propounded the interrogatories at issue. For the most part, the interrogatories
seek information regarding investigative techniques, surveillance, and
informants used by the defendants Kelley and Bell from July 8, 1977 until
September 23, 1977. On July 8, 1977, a seizure of documents occurred at
plaintiff's offices and, during this three-month time period, a grand jury
investigation into alleged criminal violations by members of the Church was
ongoing. From the record and a hearing on a similar matter before Chief Judge
Bryant on October 12, 1977, it appears that the grand jury has sought the
testimony of these movants, but, for various reasons, some of them have evaded
being subpoenaed.
FN1. The movants are purported members of the class sought to be
represented by the plaintiff, the Founding Church of Scientology. The class
has not yet been certified.
The defendants raise three arguments in objection to this motion to compel:
(1) the movants are not "parties" within Fed.R.Civ.P. 33 and, therefore,
cannot properly serve interrogatories upon the defendants; (2) the
interrogatories are irrelevant because they seek information not in issue in
this lawsuit; and (3) the interrogatories seek information that is related to
"privileged grand jury matters." For the reasons hereinafter stated, the Court
rejects defendants' first two arguments, but finds that the information sought
by the interrogatories will interfere with the ongoing criminal investigation;
therefore, the plaintiff/movants' motion to compel is denied.
I. MOVANTS AS "PARTIES"
[1][2] Rule 33 of the Federal Rules of Civil Procedure limits the use of
interrogatories to a "party" to the litigation. The Court finds, however, that
defendants' objection that the movants are not "parties" and therefore cannot
serve interrogatories is misplaced for two reasons. First, both the plaintiff
and the movants appear to have submitted the interrogatories and the motion to
compel. Therefore, because the plaintiff is a party to this case and,
accordingly, has the right to serve interrogatories and file the present
motion, the fact that the movants have joined in the papers will not be fatal
to their motion. Second, even if the plaintiff did not join in the motion, this
case was brought as a class action. Until the Court has ruled that an action
cannot continue as a class action, it must be regarded as a class action, if
the pleadings so provide.[FN2] See Equal Employment Opportunity Commission
v. D. H. Holmes Co., Ltd., 556 F.2d 787, 793 n.9 (5th Cir. 1977) (Kunzig, J.);
City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9th Cir. 1971);
Wright Federal Courts, s 72 at 314 (2d ed. 1970). In treating this case as a
class action, the Court is aware of the evolving view that interrogatories,
which according to Fed.R.Civ.P. 33 may only be served upon a "party," may,
in certain circumstances, be served upon class members. See Clark v.
Universal Builders, Inc., 501 F.2d 324, 340-41 (7th Cir.) cert. denied, 419
U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974); Bachman v. Collier, 73
F.R.D. 300 (D.D.C.1977); United States v. Trucking Employers, Inc., 72
F.R.D. 101, 104 (D.D.C.1976). If a class member is a "party" for purposes of
responding to interrogatories, then a class member should be considered a
"party" for purposes of propounding interrogatories.[ *380 FN3] Accordingly,
the Court must reject the defendants' argument that the movants lack standing
to propound interrogatories.
FN2. The Court believes this rule appropriate in controlling the discovery
process in a purported class action. This should not necessarily be
construed to suggest that preliminary injunctive relief may be granted to a
class prior to class certification. See Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 177-178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
FN3. In fact, the main reason why some courts do not allow interrogatories
to class members is to protect the members from harassment. See
Wainwright v. Kraftco Corp., 54 F.R.D. 532, 534 (N.D.Ga.1972). There is
no need for such protection when members seek to propound interrogatories.
II. RELEVANCY
[3] The Court finds that the interrogatories propounded are relevant to the
allegations made in this lawsuit. Although the complaint alleges some 22 years
of alleged harassment of the Church and its members by government activity, the
interrogatories are only directed to a period of three months after the initial
complaint was filed.
Whenever a plaintiff seeks to prove a pattern and practice of harassment,
events indicating such harassment that occur prior to or subsequent to the
times principally encompassed by the complaint are relevant to plaintiff's
case. Cf. Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct.
2736, 2742-43 n.15, 53 L.Ed.2d 768 (1977). For example, if plaintiff could
prove continuing harassment, this may be evidence of whether there was
harassment at a prior time. Therefore, the Court finds that the interrogatories
are relevant to the issues in this case.
III. THE GRAND JURY INVESTIGATION
The defendants further object to the interrogatories on the ground that they
seek information related to privileged grand jury matters and, accordingly, it
would be improper to allow plaintiffs to obtain documents in a civil case to be
used in a related criminal proceeding.
[4] It is well established that a litigant [FN4] should not be allowed to
make use of the liberal discovery procedures applicable to a civil suit to
avoid the restrictions on criminal discovery and, thereby, obtain documents he
might not otherwise be entitled to for use in his criminal suit. See, e. g.,
Gordon v. Federal Deposit Insurance Corp., 138 U.S.App.D.C. 308, 310, 427
F.2d 578, 580 n.5 (1970); United States v. Mellon Bank, N.A., 545 F.2d 869,
873 (3d Cir. 1976). The seminal opinion on this issue is Campbell v.
Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct.
502, 9 L.Ed.2d 502 (1963).[FN5] The Court there addressed at *381 length the
policies and objectives of criminal discovery that would be thwarted if the
scope of civil discovery into a criminal investigation is not limited.
FN4. Although the "litigant" in most of the cases that have applied this
principle was, in fact, a criminal defendant already, this principle should
not be limited only to persons after they become a "defendant." See
Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962), cert. denied,
371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963) (authorizes limiting
range of discovery when " . . . a criminal proceeding . . . is pending or
about to be brought . . . "; " . . . a taxpayer about to be
indicted . . . "); Driver v. Helms, 402 F.Supp. 683, 685
(D.R.I.1975) (authorizes use of protective orders when "(n)o case has been
presented to a Grand Jury, no indictments have been returned, and no trial
is in progress."); SEC v. Control Metals Corp., 57 F.R.D. 56, 57-58
(S.D.N.Y.1972) (issued protective order when "a Grand Jury proceeding (was)
pending . . . and an indictment (was) confidently expected."). The basic
reason for this is that the policies that necessitate limiting civil
discovery when it would interfere with a criminal investigation, see p. 380
infra, are equally applicable whether the plaintiff seeking discovery is a
defendant or merely the subject of a grand jury investigation. Therefore,
the Court rejects the argument advanced by the plaintiff/movants that the
Campbell principle is inapplicable to a person who is not yet a criminal
defendant.
FN5. Plaintiff/movants assert that Campbell, supra, does "not reflect the
law in this jurisdiction." Memorandum in Support of Discovery Requests by
Plaintiff and Movants Lawrence, Lake, Mele, Glickman, Miller, Mettle and
Butterworth, at 3 n.5 (October 15, 1977). For this proposition, they cite
three cases which hold only that an unreasonable stay of a civil case
because of a pending criminal proceeding will not be allowed. Not only is
Campbell cited with approval in two of these cases, (Gordon v. Federal
Deposit Insurance Corp., 138 U.S.App.D.C. 308, 310, 427 F.2d 578, 580 n.5
(1970); McSurely v. McClellan, 138 U.S.App.D.C. 187, 195, 426 F.2d 664,
672 n.49 (1970)), but all three cases explicitly authorize a trial court to
grant protective orders or limit discovery when necessary to protect the
criminal investigative process (Dellinger v. Mitchell, 143 U.S.App.D.C.
60, 65, 442 F.2d 782, 787 (1971); Gordon, supra 138 U.S.App.D.C. at 310,
427 F.2d at 580; McSurley, supra, 138 U.S.App.D.C. at 195, 426 F.2d at
672).
Traditionally, the narrow scope of discovery in criminal litigation is
justified by three considerations which are said to be peculiar to criminal
law. First, there has been a fear that broad disclosure of the essentials of
the prosecution's case would result in perjury and manufactured evidence.
Second, it is supposed that revealing the identity of confidential government
informants would create the opportunity for intimidation of prospective
witnesses and would discourage the giving of information to the government.
Finally, it is argued that since the self-incrimination privilege would
effectively block any attempts to discover from the defendant, he would retain
the opportunity to surprise the prosecution whereas the state would be unable
to obtain additional facts. This procedural advantage over the prosecution is
thought to be undesirable in light of the defendant's existing advantages. The
validity of each of these objections must be appraised in each of the
situations in which the defendant may seek discovery and must be weighed
against the importance to the defendant of the disclosure.
307 F.2d at 487 n.12, quoting Developments in the Law Discovery, 74
Harv.L.Rev. 940, 1052 (1961) (emphasis added). The court then concluded that in
some situations it may be appropriate to stay the civil proceeding, while in
others, the trial judge "should use his discretion to narrow the range of
discovery." 307 F.2d at 487.
[5] This Court finds that, in balancing [FN6] the plaintiff/movants' need
for the information sought against the Government's need to prevent
interference with a criminal investigation that may result from civil
discovery, the motion to compel must be denied. Plaintiff/movants' need for the
information is not as urgent as they claim. They have alleged some 22 years of
harassment by the defendants in this lawsuit. Instead of attempting to discover
information from the nine defendants relevant to proving harassment during this
extended period, plaintiff/movants seek from only two of the defendants
significantly, the only two defendants who are responsible for the ongoing
grand jury investigation information related to the limited time period when
the grand jury investigation was apparently being conducted. Thus, while the
plaintiff/movants' need is not so great at this stage of the litigation, the
Government does have an urgent need in protecting its present investigative
operations. Therefore, the Court believes that the government's interest in
preserving the secrecy of the ongoing criminal investigation outweighs the
plaintiff/movants' need for this information, in light of the vast period of
time for which information relevant to the harassment allegations could be
sought.
FN6. Plaintiff/movants rely heavily upon the factors which the court in
United States v. Simon, 373 F.2d 649 (2d Cir.), vacated on other
grounds, 389 U.S. 425, 88 S.Ct. 577, 19 L.Ed.2d 653 (1967), said ought
to be balanced in deciding whether to require the government to disclose.
This Court believes that applying these factors, the result reached would
be consistent with this Court's decision. In any case, the Simon court
dealt with a case in which an independent party was bringing the civil
action. The court there rejected as "inapposite" the line of cases in which
a defendant in a criminal case seeks to use the civil rules to obtain
disclosure of the government's evidence, a situation analogous to the one
now before this Court. 373 F.2d at 653.
An Order in accordance with the foregoing will be issued of even date
herewith.