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nity by force of the Speech or Debate clause, in the absence of a claim of legislative purpose.” (Id. at 1286]

As to the inspection and transportation by subcommittee investigator Brick of documents held in “safekeeping” by court order, the refusal of the district court to grant summary judgment was affirmed by an equally divided court. Five judges felt that "there is evidence in the record as it presently stands, 'which affords more than merely colorable substance to the claim of an independent Fourth Amendment violation by Brick.” [Id. at 1289] They hypothesized that the district court's "safekeeping” order in effect at the time of Mr. Brick's inspection and transportation of the documents to Washington for the subcommittee's use precluded Mr. Brick from having access to the documents.

Judge Wilkey, writing for himself and four other judges, disagreed. These judges did not believe that Mr. Brick's inspection and transportation of the documents constituted an unlawful search and seizure under the Fourth Amendment.

On May 19, 1977, the defendants filed a petition for a writ of certiorari with the U.S. Supreme Court, and on October 11, 1977, the petition was granted. In a one-sentence per curiam opinion, the writ of certiorari was dismissed as improvidently granted on June 26, 1978. [438 U.S. 189)

On August 31, 1978, Herbert H. McAdams II, executor of Senator McClellan's will, was substituted, by order of the district court, as defendant in lieu of the Senator, without prejudice to his right to claim that plaintiff's cause of action did not survive the death of Senator McClellan.

On January 17, 1979, U.S. District Judge William Bryant issued a memorandum and order granting the McSurelys' motion to substitute Mrs. Mary Brick as a party defendant in lieu of her husband, John Brick, and to substitute Mrs. Evelyn Alderman as a party defendant in lieu of her husband, Jerome S. Alderman, and denying the defendants' motion to dismiss the action as to the deceased defendants, Senator McClellan, Mr. Alderman and Mr. Brick.

Judge Bryant resolved the issue of substitution by determining that the time requirement of Federal Rule of Civil Procedure 25(a)(1) had been met, since plaintiffs had moved for substitution within 90 days after the deaths were suggested on the record. Defendants' argument that substitution was improper at that point because the identity of the deceased defendants' legal representatives had not been settled was rejected. Judge Bryant noted that this would merely mean that the 90 day period of Rule 25(a)(1) would still not have begun and that a successor of an estate as well as a legal representative is proper for purposes of substitution. He also stated that no circumstances were apparent which would make such substitution at that stage unfair. The defendants had argued that the requirement of Rule 25(a)(1) that the party's death not extinguish the claim had not been met and therefore, the case should be dismissed. The defendants had contended that constitutional rights are personal rights, the violation of which constitute personal injuries and that the District of Columbia survival statute, D.C. Code $ 12-101, permits recovery only for pecuniary losses for personal injuries. Because pecuniary losses had not been alleged for the actions which remained at issue, the defendants argued that the action abated by operation of the survival statute. Judge Bryant rejected this argument and stated:

This argument is not persuasive given the nature of the actions underlying the alleged constitutional deprivations; hence, plaintiffs' remaining claims survive the defendants' death whether the court applies federal policy governing survival of a Bivens-type cause of action, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or the District of Columbia survival statute, D.C. Code $ 12-101. Given the gradual acceptance by federal courts of the position that federally created torts do survive the death of a tortfeasor, see, e.g., Cox v. Roth, 348 U.S. 207, 210 (1955), Kirk v. Commissioner of Internal Revenue, 179 F.2d 619, 621 (1st Cir. 1950), this Court will not single out claims for injuries to constitutionally-protected rights as abating on the death of the wrongdoer. This is particularly so in light of the Supreme Court's emphasis on the increasing importance of the damage remedy in view of restrictions on the operation of the exclusionary rule. See United States v. Calandra, 414 U.S. 338, 454 n.10 (1974). To the extent that the right of recovery depends upon federal considerations, it should not be governed by archaic concepts of survivability of the common law, see Almond v. Kent, 459 F.2d at 204 but rather by the objectives of the statutes in question.

With respect to the District of Columbia survival statute, the alleged injury here cannot be categorized as strictly a personal injury, see Colpoys v. Foreman, 163 F.2d at 910, nor is it the case that pecuniary damages for the remaining claims have not been alleged. Defendants argue that the injuries were solely personal in nature, but the claimed violations of papers and property transcend that which is normally considered a personal injury. Moreover, those cases which permit recovery for pecuniary damages only from personal injuries, see Coleman v. Moore, 108 F. Supp. 425, at 427; Soroka v. Beloff, 93 F. Supp. 642, at 644, involve physical harm to the victim. In such situations, while no recovery is permitted for pain and suffering, some measure of recovery is allowed for the physical injury. Coleman v. Moore, 108 F. Supp. 425, at 427; Phillips v. Lust, 82 F. Supp. 63, 63 (D.D.C. 1949). Here, in contrast, to deny recovery for objectively nonqualifiable injury would be to deny the claim in its entirety. Such a position is inconsistent with the purposes of the survival statute. See generally Soroka v. Beloff, 93 F. Supp. at 644. The District of Columbia survival statute is thus no bar to the maintenance of plaintiffs' claims. (McSurely v. McAdams, Civil Action No. 516–69 (D.D.C. Jan. 17, 1979) Memoran

dum at 3-4) On September 9, 1980, in a memorandum and order, Chief Judge Bryant granted the plaintiffs' motion for substitution and directed that Joshua D. Bash and Murray E. Kindbe be substituted as party defendants for Evelyn Adlerman, deceased.

During the remainder of 1980 and into 1981, discovery continued in the case. On June 29, 1981, the plaintiffs filed a motion to compel Julian Singman to respond to certain questions he had refused to answer at his deposition. Mr. Singman, the lawyer representing Mr. Ratliff (the Kentucky Commonwealth Attorney who originally had custody of the McSurely materials) in the current litigation, had declined, on the basis of attorney-client privilege, to answer questions about the contents of a memorandum found in the files of the Senate Permanent Subcommittee on Investigations. The significant portion of the so-called "Duffy memorandum' (named for assistant Subcommittee Counsel Lavern Duffy) read as follows: September 11, 1967

Julian Singman, attorney, called Duffy in Nashville and said he had received information that some people were stirring up trouble with the local population in Pikeville, Kentucky. Also, the same individuals were involved in racial disorders in Nashville. He gave me the telephone number of Thomas Ratliff in Pikeville that I should call to

obtain the details. According to the plaintiffs, this memorandum was "of critical importance" to their case. They explained:

While plaintiffs believed that the Senate Subcommittee's interest in the seized McSurely documents was not mere accident or happenstance, they were not able to definitively establish how the Subcommittee initially learned of the McSurely papers. It was not until the Duffy memorandum was discovered in the Senate Permanent Subcommittee's files that plaintiffs learned the name of the person who had contacted the Subcommittee staff. The name of the person who contacted Mr. Duffy was of critical importance to this litigation. Plaintiffs, in their amended and supplemental complaint, alleged in paragraph 18 that the defendants, both Federal and state, had engaged in a conspiracy calculated to deprive plaintiffs of their rights, privileges and immunities granted to them as citizens of the United States by the laws and Constitution of the United States, including particularly the First, Fourth and Fifth Amendments thereto. Until the discovery of the Duffy memorandum, plaintiffs were unable to concretely establish the nexus between the Federal and state defendants. When plaintiffs learned that Julian Singman had made the initial contact, the pieces of the puzzle began to come together. [Memorandum of Law in Support of Plaintiffs

Motion to Compel, June 29, 1981, at 1-2 (footnote omitted)] The plaintiffs argued that Mr. Singman's testimony would bolster their conspiracy theory, and asserted that his claims of attorney-client privilege were “wholly beyond the scope” of the privilege. They contended that questions relating to his conversations with Mr. Duffy were not privileged because Mr. Duffy was not his client. They further maintained that questions relating to the name of Mr. Singman's client, the date his representation began, and the payment of his fees were also not protected from disclosure under relevant authorities, nor were other communications involving his knowledge of the state raid on the McSurelys.

On July 13, 1981, deponent Singman filed a memorandum in opposition to the plaintiffs' motion to compel his testimony, arguing that his refusal to answer was premised on the attorney-client privilege with respect to a prior client. Citing N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir. 1965), Mr. Singman contended that even the name of his prior client was privileged and need not be disclosed:

The situation in the present case is identical to N.L.R.B. v. Harvey. Here a client contacted his attorney, Mr. Singman, who in turn, contacted a third party concerning the plaintiffs. As in Harvey, upon identification of Mr. Singman's client, it will be learned that the client made certain specific communications concerning the plaintiffs, which are protected by the attorney-client privilege. More than the identity of the client will be disclosed by naming the client; the substance of the attorney-client communication will be revealed.

An additional reason exists for finding the identity of Mr. Singman's client protected by the attorney-client privilege. Mr. Singman, on behalf of his client, contacted a government employee charged with investigatory functions on behalf of the government. This situation was found to warrant the application of the attorney-client privilege in In Re Kaplan, 8 N.Y. 2d 214, 168 N.E. 2d 660 (1960). (Memorandum of Points and Authorities in Opposition to Plain

tiffs' Motion to Compel, July 13, 1981, at 3] Mr. Singman further contended that in order to protect the identity of his client completely, it was also necessary for him to refuse to answer questions concerning the payment of his legal fees, “and similar questions designed to discover the identity of shis) client by process of elimination.” (Id. at 5] Finally, Mr. Singman refused to reveal the contents of his conversation with Mr. Duffy, noting that "were he to repeat his conversation . . . he would provide plaintiffs with the basic substance of privileged communications [with] his client.” (Id.)

On December 4, 1981, Judge Bryant issued a memorandum and order granting the plaintiffs' motion to compel Mr. Singman to respond to the questions he had refused to answer at his deposition. Asserting that because the attorney-client privilege "puts an obstacle in the way of the search for truth, the privilege is narrowly construed "Memorandum and Order, December 4, 1981, as 4], Judge Bryant held that Mr. Singman had to respond to questions in all five of the categories at issue: his communications with Mr. Duffy; the identity of his client; the fee arrangement with his client; his communications with third parties other than Mr. Duffy; and the substance of his reports and files. Turning first to the issue of Mr. Singman's contact with Mr. Duffy, the court ruled that:

Except for Mr. Singman's disposition statement that his refusal to answer questions was based upon attorney-client

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privilege, the deponent has not alleged, much less shown
with sufficient certainty, that Mr. Singman acted as a
lawyer in connection with his communication related to a
fact of which the attorney was informed by his client,
without the presence of strangers, for the primary purpose
of securing legal services and not for the purpose of com-
mitting a crime or tort. On these grounds alone, the court

could grant plaintiff's motion. (Id. at 5] Although Judge Bryant noted that it might be possible that deponent Singman could cure this flaw in his pleadings, he went on to point out that there were several other elements in the attorneyclient privilege which he had failed to establish. He found, for example, that Mr. Singman had made no showing that his communication with Mr. Duffy was without his client's consent or that his client had conveyed information to him with the expressed intent that it be kept secret. “Statements made by clients to counsel though made privately, are not privileged if it was understood that the information communicated in the conversation was later to be shared with others,” the judge ruled. (Id.]

Declaring that the identity of a client is "rarely" privileged in formation, Judge Bryant held that Mr. Singman must answer that question as well. He reasoned that “[a]bsent a showing that depo nent's response to plaintiff's question would disclose a motive relat ing to the conduct of his client's legal affairs, the court must compel the answer." [Id. at 7] The judge ruled that the Harvey case cited by Mr. Singman was inapplicable.

Because Mr. Singman had made no showing that disclosure would disrupt the attorney-client privilege, Judge Bryant also granted the motion to compel with respect to the deponent's fee ar rangements, his communications other than the Duffy memoran dum, and his reports and files.

On January 11, 1982, the Federal defendants filed a motion to compel discovery with respect to: (1) the full content of the materi als which the plaintiffs claimed were unlawfully examined or dis seminated; and (2) the medical condition and treatment on which the plaintiffs relied to establish their emotional and psychosomatic injury. According to an accompanying memorandum, the motion was based on the plaintiffs' "repeated failure or refusal at deposi tion and in responses to interrogatories and requests for production to provide federal defendants with the most fundamental informa tion concerning the factual basis of their claims regarding defend ants' allegedly tortious conduct and plaintiffs' alleged injuries.' [Memorandum of Points and Authorities in Support of Federal De fendants' Motion to Compel Discovery, January 11, 1982, at 1]

With respect to the first group of materials—the documents which were purportedly unlawfully examined and disseminatedthe Federal defendants claimed they had no opportunity to review them because the plaintiffs had "deliberately destroyed" them after their return and thereafter refused to cooperate in reconstructing their contents. Terming information about the contents o the materials “critical to preparation of the defense,” the defend ants argued:

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