been ordered produced by the court several months previously (on December 4, 1979) but had never been made available to the defendant. Claiming that FSD's recalcitrance was without justification, Rep. Holtzman argued that the case should be dismissed as a sanction against FSD and as a warning to future litigants. On October 17, 1980, the plaintiff filed a memorandum in opposition to Rep. Holtzman's motion under Rule 37. The plaintiff asserted that the Congresswoman had not asked for the tax records at the time of her original document request and that, in any event, the records were not relevant and therefore not the proper subject of document production in the case. On the same day, Rep. Holtzman filed a reply memorandum arguing that: (1) her initial document request clearly called for the production of the tax returns of the FSD officers and directors; and (2) the income tax returns were patently relevant to Rep. Holtzman's defense to the defamation charge, for impeachment purposes at trial, and to the issue of damages. On November 18, 1980, U.S. District Court Judge Eugene Nickerson filed a memorandum and order granting Rep. Holtzman's motion to compel the production of the FSD officials' income tax returns and denying her motion to dismiss the complaint. The court found that the tax returns were relevant to the case: Truth is a defense to defamation. Any fraudulent statements found in the tax returns of officers and directors of plaintiff corporation would be relevant in evaluating the truth of defendant Holtzman's public declarations that plaintiff was unfit to serve as a vendor in a federallyfunded program. Nor can this request be considered a fishing expedition into the private financial affairs of plaintiff's officers. The grand jury indictment charging the three officers with tax fraud provides a sufficient basis to warrant inquiry into their tax returns. [Memorandum and Order, November 18, 1980, at 4] On June 12, 1981, District Judge Nickerson filed another memorandum and order directing the U.S. Attorney for the Eastern District of New York to make available to the parties the grand jury minutes of the testimony given in the criminal case against the FSD officials by several witnesses concerning the subject matter of the civil suit. The witnesses-Sidney Pinter, Israel Goldberger, Gabor Rosner, and Abraham Tenenbaum-had testified before the grand jury under a grant of use immunity but had refused to testify at depositions in the civil case asserting their Fifth Amendment privilege. In response to Rep. Holtzman's request, the court made the testimony of three of the witnesses available. Judge Nickerson explained: The use immunity provided to Pinter, Goldberger, and Rosner protects them against both direct and indirect use of the compelled grand jury testimony in any criminal prosecution. Kastigar v. United States, 406 U.S. 441, 453 (1972). It does not, however, protect them from a criminal prosecution based solely on information and evidence de rived from legitimate sources wholly independent of the Therefore, if defendant Holtzman had no access to grand The court also directed the witnesses to respond to all questions concerning the "specific subjects that actually were touched upon by questions appearing in the transcript of the immunized testimony." [Id. at 4] They were not compelled to respond to questions other than those concerning the "specific subjects." Since one of the witnesses-Mr. Tenenbaum-had not testified before the grand jury and was not granted immunity, he was not directed to answer any questions which might incriminate him. On June 16, 1981, the plaintiff filed its first request for the production of documents from Rep. Holtzman. Rep. Holtzman filed her response on July 17, 1981, at which time she asserted that she was not required to produce any documents until the plaintiff had fully complied with her previous production request. According to Rep. Holtzman, FSD had "concededly" not complied. Discovery continued in the case through the summer of 1981. Status-The case is pending in the U.S. District Court for the Eastern Distict of New York. V. Legislative Immunity and the Speech or Debate Clause McSurely v. McAdams (formerly McClellan) Civil Action No. 516-69 (D.D.C.) On August 11, 1967, pursuant to warrants issued under a state sedition statute, Kentucky officials arrested Alan and Margaret McSurely and seized books and papers from their home. The McSurelys filed a complaint in the U.S. District Court for the Eastern District of Kentucky, challenging the constitutionality of the state statute. On September 11, 1967, the three-judge court which heard the case issued an order directing that: (1) the material seized in the raid on the McSurely home be left in the custody of the Kentucky Commonwealth Attorney, Thomas B. Ratliff; (2) the material be made available to the U.S. Marshal for the Eastern District of Kentucky; (3) Mr. Ratliff and the U.S. Marshal make an inventory of the seized material and file it with the record of the case; and (4) Mr. Ratliff return to the McSurelys such materials as he determined were not relevant to the investigation and prosecution of the McSurelys. That same day, the McSurelys were indicted by a Kentucky grand jury. On September 14, 1967, the three-judge Federal district court rendered its decision holding the Kentucky statute unconstitutional and enjoining prosecution of the McSurelys. The court directed that Mr. Ratliff retain the seized materials "in safekeeping until final disposition of this case by appeal or otherwise." On September 25, 1967, Lavern Duffy, Assistant Counsel on the staff of the Permanent Investigations Subcommittee of the Senate Government Operations Committee, called Mr. Ratliff by phone to ask about the seized documents. Subsequently, on October 8, 1967, committee investigator John Brick went to Kentucky, talked with Mr. Ratliff, and confirmed that the seized material in Mr. Ratliff's possession contained information relating to the activities of a number of organizations in which the subcommittee was interested. On October 12, 1967, Mr. Brick examined the material for about four hours. He took notes, made copies of 234 of the documents, and then returned to Washington. On October 16, 1967, Subcommittee Chairman Senator John McClellan told Mr. Brick to prepare subpoenas duces tecum for the seized material in Mr. Ratliff's custody, which the Senator had determined was relevant to the subcommittee's investigations of an April 1967 riot in Nashville, Tennessee. The next day the McSurelys filed motions with the three-judge court seeking orders blocking Mr. Ratliff from releasing the seized material to the subcommittee and directing him to return the materials to them (the McSurelys). On October 30, 1967, the three-judge court issued an order denying the McSurelys' motions. Officers of the court and the parties to the action were directed "to cooperate with the Senate committee in making available such of the materials, or copies thereof, as the committee considers pertinent to its inquiry. . ." [McSurely v. McClellan, 553 F.2d 1277, 1308 (D.C. Cir. 1967)] On November 1, 1967, a motion for reconsideration and rehearing of the October 30th order was denied. The court granted a 24hour stay to allow the McSurelys to apply to the U.S. Supreme Court for review, and directed that pending such review the material was not to be removed from Mr. Ratliff's custody. On November 10, 1967, Justice Stewart, for the Supreme Court, ordered that the documents remain in Mr. Ratliff's custody until the three-judge court could hear and rule on the McSurelys' objections to the Congressional subpoenas. In an order issued on December 5, 1967, the three-judge court overruled the McSurelys' objections to the subpoenas. The court ordered Mr. Ratliff to comply with the Congressional subpoenas by allowing committee representatives to make copies of the materials in his possession pursuant to the court's order. A five-day stay was granted in order to allow the McSurelys to seek Supreme Court review. On January 20, 1968, Justice Stewart again stayed the threejudge court's order. The stay was conditioned on the McSurelys filing an appeal of the October 30 order with the Supreme Court. On March 18, 1968, the Supreme Court declined to hear the case and dismissed the appeal in a per curiam order [390 U.S. 914 (1968)] The Court, however, continued the stay to allow the McSurelys to apply to the Sixth Circuit Court of Appeals for a stay. By the time the McSurelys' appeal to the Sixth Circuit was taken, the time for the state to appeal the three-judge court's order of September 14, 1967, finding the Kentucky statute unconstitutional, had expired. In July of 1968, the Sixth Circuit decided that since time for appeal of the September 14th order had run, "the right of the court to retain possession of the seized documents, which include no contraband, has expired." [McSurelys v. Ratliff, 398 F.2d 817, 819 (6th Cir. 1968)] The appeals court ordered that the materials be returned to the McSurelys without prejudice to the subcommittee's right to proceed with the enforcement of its subpoenas: "[Q]uestions [as to the subpoenas] may be adjudicated under the appropriate procedure for challenging subpoenas of Congressional Committees." [398 F.2d at 818] On November 8, 1968, the seized materials were returned to the McSurelys, who were immediately served with new subcommittee subpoenas similar to the original subcommittee subpoenas. They refused to comply with the new subpoenas. The McSurelys filed a civil action in the U.S. District Circuit for the District of Columbia on March 4, 1969, the date named in the subpoenas for their appearance before the subcommittee. They sought a declaration that compliance with the subpoenas was not required; a preliminary and permanent injunction against institution of criminal proceedings against them for their failure to comply with the subpoenas; and monetary damages. No action had been taken in this civil suit at the time the McSurelys were indicted for contempt of Congress for failure to comply with the subpoenas. Subsequently, in their civil action, they filed an amended and supplemental complaint seeking only compensatory and punitive damages. The McSurelys alleged that the defendants (Senator McClellan, three members of the subcommittee staff-Jerome Adlerman, Donald F. O'Donnell, and John Brick-and Mr. Ratliff) entered into a conspiracy to deprive them of their constitutional rights. They sought damages for the unlawful seizure, inspection and appropriation of their personal and business papers and documents and other objects and articles, for the issuance of subpoenas based on illegally obtained information and invalid on their face, for their humiliation and embarrassment, mental and emotional pain, loss of employment, disruption of personal privacy and safety caused thereby, all in violation and derogation of their rights under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution and the laws of the United States. [Plaintiff's Amend ed and Supplemental Complaint, January 29, 1971, at 13- In the criminal action for contempt of Congress, the McSurelys were convicted and sentenced in June 1970. The convictions were appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The decision of the appeals court, reversing the contempt of Congress convictions of the McSurelys, was filed on December 20, 1972. The majority of the court took the position that the exclusionary rule of evidence applied to proceedings before Congressional committees as well as to criminal prosecutions, and therefore, the court held, the subcommittee's subpoenas were inadmissible as the fruit of an unlawful search and seizure. [United States v. McSurely, 473 F.2d 1178 (D.C. Cir. 1972)] The case was remanded to the U.S. District Court for the District of Columbia with instructions to enter judgments of acquittal in the matter of the contempt convictions. The Solicitor General decided not to petition the Supreme Court for a writ of certiorari. In the civil proceedings brought by the McSurelys, Chairman McClellan and the three subcommittee staff members filed a motion to dismiss, or, in the alternative, for summary judgment in the district court on October 26, 1971. In support of the motion the defendants argued that: (1) Defendants are immune from actions for damages where as here it is clear that their conduct was within the sphere of legislative activity. (2) The claimant fails to state a claim upon which relief can be granted against defendants who were a U.S. Senator or employees of the Senate of the United States at all times material to this cause. (3) Plaintiffs are barred by collateral estoppel from relitigating issues previously settled by the judgment of this court in United States v. Alan McSurely and Margaret McSurely, Criminal Nos. 1376-69, 1377-69 ** [Defendants' Motion to Dismiss or in the Alternative for Summary Judgment, October 26, 1971, at 1] * The motion to dismiss was denied on June 12, 1973, and after the motion for reconsideration was rejected, the Federal defendants filed a notice of appeal. In a 2 to 1 decision issued on October 28, 1975, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's ruling and remanded the case for further action consistent with its holding. [McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975)] The panel of the appeals court held that, as a matter of law, the defendants were entitled to summary judgment on all counts of the complaint relating to the inspection by the committee investigator of the seized material, the transportation of such material to Washington by the investigator, the utilization of the information by the investigator as the basis for Congressional subpoenas, and the issuance of contempt of Congress citations against them. The appeals court left for the district court on remand the determination of whether the defendants actively collaborated in the original raid on the McSurelys' home and, if so, whether there was sufficient evidence of such collaboration to merit a trial on that |